177 F.2d 793 (4th Cir. 1949), 5887, Farm Bureau Mut. Auto. Ins. Co. v. Hammer

Docket Nº:5887.
Citation:177 F.2d 793
Case Date:October 03, 1949
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 793

177 F.2d 793 (4th Cir. 1949)



HAMMER et al.

No. 5887.

United States Court of Appeals, Fourth Circuit.

October 3, 1949

Argued June 17, 1949.

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Robert Lewis Young, Richmond, Va., and Wayt B. Timberlake, Jr., Stanton, Va. (John G. May, Jr., Richmond, Va., on the brief), for appellant.

H. G. Muntzing, Moorefield, W. Va., and Glenn W. Ruebush, Harrisonburg, Va. (Sybert Beverage, Monterey, Va., and Paul J. Hartman, Wake Forest, N.C., on the brief), for appellees.

Before PARKER, Chief Judge, SOPER, Circuit Judge, and CHESNUT, district judge.

SOPER, Circuit Judge.

Farm Bureau Mutual Automobile Insurance Company seeks a declaratory judgment that a policy of automobile insurance issued by it to Marvin L. Wagner does not cover the damages suffered by five persons who were killed or injured on April 19, 1947 in a collision between Wagner's automobile truck and a passenger automobile in which they were riding, because Wagner intentionally caused the collision. The complaint shows, and it is not denied, that Wagner was subsequently convicted of murder in the second degree in the Circuit Court of Highland County, Virginia, and and sentenced to ten years in the penitentiary for intentionally and maliciously causing the death of one of the five persons by intentionally driving his truck into the automobile of which the deceased was an occupant. The defendants in the instant case are a committee appointed by the State Court for Wagner, thepersonal representatives of the persons who were killed, and two persons who were injured in the collision. They defend on the ground that they are not bound by the conviction of Wagner in the criminal case, and they show that after that event it was adjudged in civil suits brought by them against Wagner in the State Court that the injuries were accidental; and they contend that the Insurance Company is therefore obligated within the limits of liability specified in its policy to pay the judgments recovered against Wagner in the aggregate sum of $43, 000 which were returned unsatisfied. 1

The defendants filed a motion for summary judgment supported by affidavits which showed that the civil suits were brought and tried upon the theory of negligent injury, and that Wagner made no defense thereto; and that after the conviction

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in the criminal case and before the trial of the civil actions the attorney for the Insurance Company, who had previously entered his appearance for Wagner therein, withdrew with leave of court. The motion for summary judgment was granted by the District Judge and the Insurance Company's complaint was dismissed. He was of the opinion that since the Insurance Company had notice of the civil suits, it was bound to defend them under the provisions of the policy; and that as an insurer with such notice, it was bound by the finding in the civil suits that the injuries and deaths were due to the negligence of Wagner. He therefore held that the defendants should not be restrained from suing the Insurance Company under Section 4326a of the Virginia Code, entitled 'Third person injured by a party carrying indemnity insurance subrogated to rights of such party', which provides that in case execution against the insured is returned unsatisfied in an action brought by the injured person or his personal representatives in case of death, then an action may be maintained by the injured person or his personal representatives against the Insurance Company for the amount of the judgment.

We are constrained to the view, notwithstanding certain decisions which support the position of theDistrict Judge, that his judgment should not be sustained under the circumstances of this case. There can be no doubt that the policy in suit could not legally cover and was not intended to cover such conduct as Wagner was guilty of, or to indemnify him for the consequences of his crime. Not only is it contrary to public policy to permit an insured to profit by his own wrongdoing or to encourage the commission of unlawful acts by relieving the wrongdoer of financial responsibility therefore, 2 but the policy issued to Wagner specifically excludes from its coverage the unlawful act which he performed. Under Coverage F of the policy with respect to 'bodily Injury Liability' the company agreed 'To pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages, including damages for care and loss of services, because of bodily injury, including death at any time resulting therefrom, sustained by any person or persons, caused by accident and arising out of the ownership, maintenance or use of the automobile.' This provision, however, is qualified by a later paragraph which excluded intentional injury by the insured from the coverage of the policy. It is entitled 'Assault and Battery' and reads 'Assault and battery shall be deemed an accident unless committed by or at the direction of the insured.'

The answer of the defendants does not controvert the allegations of the complaint that Wagner was convicted of a serious crime which included assault and battery, in that he intentionally drove his truck into the automobile; and it is clear that wilfully driving one's car into another constitutes assault and battery upon the other's occupants. Indeed it has been so decided in Virginia where the collision under consideration took place. In Davis v. Commonwealth, 150 Va. 611, 143 S.E. 641, it was alleged that an assault was committed by driving an automobile into another automobile and injuring its occupants. In the course of the opinion the court said, 150 Va.at pages 617, 618, 143 S.E.at page 643:

'The burden was on the commonwealth to prove that the accused, in fact, intended to do bodily harm to another, or that he drove his car in a manner which showed a reckless and wanton disregard for human life and safety, and thereby caused the injury to one or more persons in the Jones car. * * *

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'While mere negligence in the operation of an automobile will not support a conviction of the driver for assault and battery, it was for the jury to say whether, under the facts and circumstances disclosed by the evidence, the injury to Jones and others in his car was occasioned by petitioner's reckless and wanton disregard for the lives and safety of othe people. If the act was so done, the law imputed to petitioner an intention to do bodily harm, and he was guilty of assault and battery. * * *

"1. Assault and battery may be committed by striking another with an automobile intentionally, or by driving the machine so recklessly as to justify a jury in finding that there was a reckless disregard of human life and safety." See also, 5 Am.Jur., Automobiles, 763, 764; State v. Sudderth, 184 N.C. 753, 114 S.E. 828, 27 A.L.R. 1180; Restatement of Torts, Sec. 13.

These considerations completely dispose of one of the main lines of argument presented by the defense, namely, that even though the insured deliberately drove his truck into the car, the resulting injuries were 'caused by accident' within the meaning of the policy. It is said that the test of what is an accident in such event should be determined not from the standpoint of the insured but from the standpoint of the injured parties; and it is pointed out that the term 'accident' has been interpreted from this aspect in situations in which the injury was caused by the intentional act of some one other than the insured, and also in cases upon life or accident policies in which the injured party is the insured, or where the insurance policy is issued under a workmen's compensation or compulsory insurance law. 3 It is obvious, however, that this rule may not be applied to a policy like that in suit in which intentional injuries by the insured are expressly excluded from the coverage.

The Virginia Motor Vehicle Safety Responsibility Act, Virginia Code 1948 Cumulative Supplement, Secs. 2154(a1)-2154(a99) on which the appellees also rely, does not require a different conclusion. They contend that this statute was passed to afford redress for persons injured by the operation of motor vehicles, rather than to furnish indemnity to the owners thereof, and hence the phrase 'caused by accident' in the statute and in policies issued under it should be construed from the standpoint of the injured parties as in the cases last cited; and they point out that this interpretation has been given and the injured party has been allowed to recover from the insurer for intentional injuries inflicted by the insured in Massachusetts and in New Hampshire under somewhat but not wholly similar acts. Wheeler v. O'Connell, 297 Mass. 549, 9 N.E.2d 544, 111 A.L.R. 1038; Hartford Accident & Indemnity Co. v. Wolbarst, 95 N.H. 40, 57 A.2d 151.

The flaw in the argument is that the rulings referred to apply to policies issued under the requirements of motor vehicle financial responsibility statutes, and not to policies voluntarily procured as in the case at bar. The policy in this suit is so framed that it can be used under such a statute for it provides that the insurance afforded by the policy shall comply with the provisions of any motor vehicle financial responsibility law which shall be applicable with respect to any liability arising from the ownership or use of the insured vehicle. This form of policy is obviously designed to enable the holder to meet the requirements of such a statute if he becomes subject thereto. The crucial question, therefore, is the applicability of the Virginia statute to the pending case.

The statute provides that the Commissioner of the Division of Motor Vehicles of the state shall revoke or suspend the license of any person upon receipt of the...

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