Aetna Cas. & Sur. Co. v. Head
| Decision Date | 19 October 1970 |
| Docket Number | No. 45906,45906 |
| Citation | 240 So.2d 280 |
| Court | Mississippi Supreme Court |
| Parties | AETNA CASUALTY & SURETY COMPANY v. Mrs. Tom L. HEAD, Jr. |
Watkins & Eager, Elizabeth Hulen, Jackson, for appellant.
Tennyson & Britt, Jackson, for appellee.
This case involves the question of whether the 'physical contact' requirement used in defining 'hit and run vehicle' in the uninsured motorists clause of an automobile liability policy is satisfied when a softdrink bottle thrown from an unknown automobile strikes the insured's automobile and injures the insured.
On April 4, 1964, the appellee, Mrs. Tom L. Head, Jr., was the named insured in an automobile insurance policy issued by Aetna Casualty and Surety Company, the appellant. On that date at about 8:00 p.m. Mrs. Head was driving her car in a northerly direction on the frontage road near LeFleur's Restaurant in Jackson, Mississippi. Just as the appellee's automobile met an approaching southbound vehicle, a softdrink bottle was tossed from the driver's window of the southbound vehicle. This bottle broke the windshield of the appellee's automobile and struck her in the face, causing injuries. The southbound vehicle was never identified nor were its occupant or occupants identified.
Mrs. Head sued her insurer under the uninsured motorists clause of her automobile policy and recovered a judgment in the court below.
The insuring clause of the uninsured motorists coverage is as follows:
Aetna Casualty will pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured highway vehicle because of bodily injury sustained by the Insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured highway vehicle; * * *
The policy definitions provide:
'uninsured highway vehicle' means:
(a) * * *
(b) a hit-and-run vehicle; * * * 'hitand-run vehicle' means a highway vehicle which causes bodily injury to an Insured arising out of physical contact of such vehicle with the Insured or with an automobile which the Insured is occupying at the time of the accident provided: (a) there cannot be ascertained the identity of either the operator or the owner of such vehicle; * * *
The decisive question is whether the 'physical contact' requirement is satisfied in this case. We think not. There are no applicable mississippi cases involving the uninsured motorists clause. The appellee relies upon cases in which the 'physical contact' requirement was held to be satisfied when the hit-and-run automobile struck another vehicle (or some object) and propelled it into the insured's automobile, State Farm Mutual Automobile Ins. Co. v. Johnson, 242 Miss. 38, 133 So.2d 288 (1961); Gavin v. Motor Vehicle Accident Indemnification Corp., 27 Misc.2d 335, 292 N.Y.S.2d 745 (1968); and Johnson v. State Farm Mutual Automobile Ins. Co., 70 Wash.2d 587, 424 P.2d 648 (1967); the first case construing a medical payments clause rather than an uninsured motorists provision. There are two types of factual situations in the cases relied upon by the appellee. Either (1) there was physical contact between the hit-and-run vehicle and an intervening vehicle causing the intervening vehicle to come into physical contact with the insured's automobile, or (2) the hit-and-run vehicle struck an object, propelling it into the insured's automobile. In the case at bar there was no contact between the unknown vehicle and the insured's automobile, nor was any other object hit by the unknown vehicle and propelled into the insured's automobile. The bottle which struck the insured's automobile was thrown from the unknown vehicle.
The appellant relies on a line of cases in which the 'physical contact' requirement was held not to be satisfied when the unknown vehicle forced the insured's automobile off the highway or into the path of another vehicle, there being no physical contact between the...
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