Hossley v. Union Indemnity Co. of New York

• Decision Date: 26 January 1925
• Docket Number: 24581
• Citation: 102 So. 561,137 Miss. 537
• Court: Mississippi Supreme Court
• Parties: HOSSLEY v. UNION INDEMNITY CO. OF NEW YORK. [*]

102 So. 561

137 Miss. 537

HOSSLEY v. UNION INDEMNITY CO. OF NEW YORK. ^[*]

No. 24581

Supreme Court of Mississippi

January 26, 1925

Division B

1 INSURANCE. Insurer held not liable for injury proximately caused by automobile being driven by person under age specified in policy, though insured did not consent to such driving.

Where a policy of indemnity insurance provides this policy does not cover any automobile vehicle being driven by any person in violation of law as to age, or if there be no age limit under the age of sixteen years, the indemnity company is not liable for injuries resulting proximately by being driven by a person under sixteen years of age, regardless of whether the owner agreed for such person to drive the car or not, as the company did not assume the risk from such driving.

2 INSURANCE. Insurer liable for injury to automobile sustained while driven by person under prohibited age if no causal connection between such driving and injury.

In such case, if while the car is being so driven, it is injured without causal connection between the driving and the injury the company is liable. There must be causal connection between the driving of the car and the injury received.

HON. E. L. BRIEN, Judge.

APPEAL from circuit court of Warren county, HON. E. L. BRIEN, Judge.

Action by H. H. Hossley against the Union Indemnity Company of New York. From judgment for defendant, plaintiff appeals. Reversed and remanded.

Judgment reversed and case remanded.

Henry, Canizaro & Henry, for appellant.

The contention of the appellant is, First: That the policy being written by the company, it must be strongly construed against it and in favor of the assured. Second: In order that the company may be relieved from liability, there must be some causative connection between the accident and the fact that the car was being driven by a minor. Third: That while the provision in the policy must be construed as intended to protect the insurance company against any increase of risk, yet there must be some intention or knowledge shown on the part of the assured, such as a consent or knowingly permitting the car to be driven by a person in violation of the law as to age or as to age limit which is sixteen years. Fourth: The accident must be due to the fault of the driver or in other words the age of the driver must have been the proximate cause of the accident. Fifth: The burden is upon the company to allege and prove the facts which exempted it from liability. 25 Cyc. 739; 1 C. J. 414-5-6; Stephens v. Accident Association, 75 Miss. 84.

In order for the company to be relieved from liability there must be some causative connection between the accident and the fact that the car was being driven by a minor, and this point we urge. It is insisted by the Indemnity Company that whether the driver lacked two months, or two days or even two hours of being sixteen years old, the company, according to its policy, is not liable, notwithstanding the fact that the age of the driver was in no way connected with the accident, and that the accident and injury done to the car was in no manner connected with the age of the boy using the car nor from any fault, negligence, or want of experience on the part of the driver. The sole question therefore raised by our plea is, would appellant's car driven by an adult, have been injured in like manner and effect as it was when driven by a minor under the age of sixteen years. Automobile policies are of recent origin and from an examination of the authorities we find but few cases decided on the exact point. Motor vehicles, however, have recently become so numerous and of so general use that there will, undoubtedly, be much litigation on the identical question. We think that the same reasoning may be applied to the construction of the policies of motor vehicles indemnity as is given to accident policies or life insurance policies. 1 C. J. 493, sec. 267, (c); National Benefit Association v. Bowman, 110 Ind. 355, 11 N.E. 316; Conboy v. Railroad Accident Association, 17 Ind. 62, 46 N.E. 363, 60 Am. St. Rep. 154.

The provision under which the appellee hopes to escape liability was inserted in the policy because the company felt that a young man who was prohibited by law of the state from driving a motor car was not a competent driver and would necessarily increase the risk of the company. And if there was no age limit as in this state (under the law) then they would put an arbitrary limit and make it under the age of sixteen years. This provision contemplates that the other contracting party, the insured, should not permit his car to be driven by one who was prohibited under the law or who was under the age of sixteen years. If the car had been driven by permission on the part of Mr. Hossley, Sr., then there might be some reason for such argument in that he, Hossley, Sr., having violated and breached this provision, would not be entitled to recover. In this case, however, there was no permission given by appellant, but to the contrary, the car was being driven by his son without the father's knowledge or consent, either expressed or implied, which facts are admitted by the demurrer. We think that it was the duty of the Indemnity Company to allege and prove that Mr. Hossley, Sr., the assured, permitted his minor son to use the car in order to put the assured in default.

There are many ways in which a motor vehicle can do or suffer accident damage. The pertinent question is, what caused the damage to the car? Had the driver been sixteen years old at the time of the accident, the Indemnity Company would be liable whether the accident was due to the driver's fault or other cause, or whether the driver was experienced or careful. Equitable Life Assurance Society v. Patterson, 41 Ga. 338, holds that: "Death resulting from an excessive dose of some drug or medicine even though known to be dangerous in character, but taken without intention of causing death is not death by his own hand or self destruction." Ins. Company v. Guller, 119 N.E. 173; Teller v. M. W. A., 165 N.W. 584; Jackson v. Ben. Asso., 140 Tenn. 495, 205 S.W. 318. The authorities on accident insurance are, also, illustrative of our contention, as 1 C. J., sec. 122. "Exposure Must be the Cause of Injury or Death. -- In order to bring a case within an exception of the policy as to voluntary exposure to unnecessary danger it is of course necessary that the accident which caused the injury or the death of insured should have been the result of such exposure." Interstate Life Assurance Co., Plaintiff in Error, v. Cora B. Dalton, 23 L. R. A. (N. S.) 722. This writing is ambiguous. Fireman's Insurance Co. v. Savery, 143 N.E. 612.

Appellee's demurrer to the plea sets out two grounds. The first ground was not urged by appellee in the trial court. The second ground is that neither replications in any way modify or nullify or affect the legal rights of the appellee as contained and set out in paragraph styled "Condition A." But few cases, in so far as our examination discloses, have been decided by the courts of last resort on questions similar to the one at bar, but we are giving this court the benefit of our examination. Manheimer Brothers v. Kansas Casualty & Surety Co. (1920), (Minn.) 180 N.W. 229; Morrison v. Royal Indemnity Co. (1917), 180 A.D. 709, 167 N.Y.S. 731. The New York court in a later decision had under consideration the case of Messersmith v. American Fidelity Co., 167 N.Y.S. 579, and held that the company was not liable. This case was, however, appealed to the appellate division of the supreme court of New York and reversed by that court. It will be further noted that in the above case the evidence showed that the automobile was operated by a minor under eighteen years of age with the consent and approval of the insured, and the injury was due to the driver's negligence, whereas, in the instant case we have a much stronger position in that the car was not operated by Harry, Jr., with the knowledge or consent of his father. Messersmith v. American Fidelity Co., 175 N.Y.S. 169. We think this is a leading case on the subject. See, also, 2 Clement on Fire Insurance, p. 610. The Messersmith case finally reached the court of appeals, New York, and is reported in 232 N.Y. 161; 19 A. L. R. 876. The decision in the Messersmith case has been cited and followed by the New York court in the following cases, evidencing an endorsement of the correctness and soundness of Judge CARDOZA'S holding: 200 A.D. 780; 194 Supp. 67; 201 A.D. 120; 193 Supp. 914; 204 A.D. 532; 198 Supp. 536; 205 A.D. 699; 199 Supp. 816. The case of Brock v. Travelers Insurance Co., 88 Conn. 308, 91 A. 279, supports the holding of the New York court.

Appellant's replications properly raised a question of fact which should have been submitted to the jury.

Brunini & Hirsch, for appellee.

The question presented by this record is to our mind a simple one. It involves a single question which is exceedingly narrow. It will be seen by the special plea of appellee the contract of insurance provides that there would be no liability on the part of the insurer in the event an accident should happen while the motor vehicle was being driven by one under sixteen years of age. Can it be questioned that the plaintiff did not have a right to agree to that condition? "Being a voluntary contract, the parties may make it on such terms, and incorporate such provisions and conditions as they see fit to adopt, and the contract as made measures their rights, provided of course the agreement does not violate any principle of the common law or any provision of the Constitution or Statute." 32 C. J. 1091; 32 C. J. 1117. The supreme court of Kentucky has passed upon the identical principle involved in the...