Adams v. Maryland Casualty Co.

• Decision Date: 05 February 1932
• Docket Number: 29788
• Citation: 162 Miss. 237,139 So. 453
• Court: Mississippi Supreme Court
• Parties: ADAMS et al. v. MARYLAND CASUALTY CO

139 So. 453

162 Miss. 237

ADAMS et al. v. MARYLAND CASUALTY CO

No. 29788

Supreme Court of Mississippi

February 5, 1932

Division B

1 INSURANCE.

Person not party to contract of insurance, but for whose protection policy provides, can stand only upon terms of contract.

2 INSURANCE. Person injured in collision between automobile and insured truck with trailer attached held not within terms of liability policy, precluding recovery thereon.

Insurance policy issued on truck and covering insured's legal liability to others contained provision that policy did not cover any obligation assumed by or imposed upon the assured while the automobiles are "being used for towing or propelling any trailer or any vehicle used as a trailer...."

HON. J A. FINLEY, Chancellor.

APPEAL from chancery court of Prentiss county HON. J. A. FINLEY, Chancellor.

Suit by R. B. Adams, a minor, by his father, against the Maryland Casualty Company. Judgment for the defendant, and the plaintiff appeals. Affirmed.

Affirmed.

J. A. Cunningham, of Booneville, for appellant.

The appellant readily concedes that the policy provides an exception to liability when an accident happens while the truck is towing a trailer, but contends that this means nothing more than to relieve the company of liability when the injury shall in any way be contributed to by the assured's violation of the provision not to tow a trailer.

If the towing of the trailer was not the proximate cause of the accident, the defendant's demurrer should have been overruled.

Hossley v. Union Indemnity Company, 102 So. 561; 14 R. C. L. 1226; Townsend v. Commercial Traveler's Mutual Accident Association, 231 N.Y. 148, 17 A. L. R. 1001.

Watkins, Watkins & Eager, of Jackson, for appellee.

The contract of insurance here sued on particularly described the motor vehicle covered thereby, and contained the express condition that no automobile covered thereby should be used for towing or propelling any trailer or any vehicle used as a trailer, and expressly provided that the policy of insurance did not cover the automobile therein described while being used for towing or propelling any trailer or any vehicle used as a trailer, and by means of an asserted waiver it is now attempted to write a new contract between the parties and extend the indemnity of the contract to cover a vehicle not covered by the original contract. There is not here involved merely a forfeiture condition or provision of the policy contract, which it is sought to avoid by reason of the acts of an agent of the insurance company constituting a waiver thereof, but it here sought to make, by waiver, a contract for the parties which they never made themselves, and by waiver to extend the contract to cover vehicles not covered thereby, and which the insurance company expressly refused to insure, and this result cannot be accomplished by means of any alleged waiver growing out of the acts of the agent of the company.

Maryland Casualty Co. v. Adams, 159 Miss. 95, 96; Massie v. Washington Fidelity National Insurance Co., 153 Miss. 436, 121 So. 125; Miss. Electric Co. v. Hartford Fire Insurance Co., 105 Miss. 768, 63 So. 231.

Adams, not being a party to the contract, is limited to the express provisions of the policy of equity on the application of one of the parties to the contract. Surely a mere third party cannot be heard to rely on an alleged waiver or estoppel when he was no party to the contract.

It is well settled, however, that where the terms of a policy are unambiguous the court will give effect to them where not prohibited by law, and that the court will not undertake to rewrite or change a policy the parties themselves have made, so as to protect one of the parties to the contract from his own improvidence or imprudence or neglect.

Jackson Steam Laundry v. Aetna Casualty & Surety Co., 156 Miss. 653, 126, So. 478.

OPINION

Ethridge, P. J.

On May 16, 1929, one F. A. Falls procured a casualty insurance policy from the Maryland Casualty Company upon a truck against liability for accidents and injuries to himself and to third persons. This truck was being operated upon a highway with a trailer attached, and collided with a car owned and being operated by the father of the appellant, inflicting serious injuries upon the appellant, R. B. Adams, minor, and hence this suit was brought. In a suit brought by Curtis E. Adams, who was injured in the same accident, controlled by the same facts, and reported in Maryland Casualty Co. v. Adams, 159 Miss. 88, 131 So. 544, a demurre...