Benton v. Canal Ins. Co.
| Decision Date | 05 June 1961 |
| Docket Number | No. 41887,41887 |
| Citation | 241 Miss. 493,130 So.2d 840 |
| Parties | Emmett BENTON et al. v. CANAL INSURANCE COMPANY, Garnishee-Appellee. |
| Court | Mississippi Supreme Court |
Travis & McKee, Cox & Dunn, Jackson, for appellants.
Satterfield, Shell, Williams & Buford and K. Hayes Callicutt, Jackson, for appellee.
This case is before us on appeal by Emmett Benton (the Western Casualty & Surety Company, Assignee), and Howard M. Polk from a final judgment of the Circuit Court of the First Judicial District of Hinds County dismissing with prejudice a writ of garnishment against the appellee Canal Insurance Company.
The record shows that Eugene Stubbs, doing business as Stubbs & Stubbs, had a contract to haul steel to various destinations from Mississippi Steel Corporation. Stubbs secured an automobile liability insurance policy from Canal Insurance Company covering liability to third persons, which insurance policy excluded his employees. Mississippi Steel Corporation was the owner of a comprehensive general liability policy from the Western Casualty Insurance Company, which will be hereinafter referred to as 'Western Casualty', covering general liability of the Steel Corporation for injuries to third parties under its premises.
Emmett Benton, an employee of Stubbs, was employed to drive a truck belonging to Stubbs. On or about April 4, 1959, Benton went upon the premises of Mississippi Steel Corporation for the purpose of obtaining a load of steel. While the truck belonging to Stubbs and being driven by Benton or another driver employed by Stubbs was being loaded with steel by Howard Polk, an employee of the Steel Corporation by means of a heavy hoist or crane which was operated and controlled by Polk, a steel plate or rail or other part on the crane came loose and fell striking Benton on the head. Benton was not actively assisting in the operation of the crane at the time he was injured.
Benton sued Mississippi Steel Corporation and Polk for damages for personal injuries caused by the steel plate or rail striking him on his head, and alleged in his declaration that the steel plate or rail had fallen from the crane on prior occasions.
The truck (tractor and trailer), belonging to Stubbs and being loaded on the premises of the Steel Corporation at the time of Benton's injury, was one of the vehicles insured under the automobile liability insurance policy No. 343681 issued by Canal Insurance Company to Stubbs as the named insured, for the period beginning January 1, 1959, and ending January 1, 1960; and on August 13, 1959, Howard Polk called upon Canal for protection as an additional insured under the policy issued to Stubbs. Thereafter a series of letters passed between the attorneys for Howard Polk and the attorneys for Canal relative to Canal's manded protection under Canal's policy alleged liability to Polk as an additional insured under the above mentioned policy. The effect of this correspondence was that Polk tendered the defense of the suit against him by Benton to Canal and deissued to Stubbs. Canal refused to defend the suit or accept any responsibility therefor. Polk them employed Travis & McKee, attorneys of Jackson, to handle the defense of the suit for him, and Canal was advised that Polk expected Canal to pay the expenses incurred by him in defending the suit and the judgment, if any, which might be obtained against him. However, before the case was tried, the parties reached a tentative agreement for a settlement of the damages suffered by the plaintiff, Benton, on account of the above mentioned injury. Canal was advised of this tentative agreement, and again requested to assume its obligation to defend the suit, but again refused to do so. The amount of liability on the part of Polk to Benton was reserved to be decided upon at the trial. The trial was had, a jury being waived, on October 8, 1959, and resulted in a final joint and several judgment for the plaintiff Benton against the defendant, Mississippi Steel Corporation, and the defendant, Howard Polk. The judgment against Polk was rendered by virtue of his negligence, and the judgment against the Steel Corporation was rendered by virtue of its liability under the doctrine of respondeat superior.
Execution was ordered issued, and the plaintiff Benton secured an execution against Polk and filed a suggestion for a writ of garnishment against Canal Insurance Company, requiring an answer by Canal Insurance Company, as to any indebtedness which it might owe to the appellant Polk. The writ of garnishment was duly issued and served upon Canal. Thereafter Western Casualty & Surety Company, insurer of Mississippi Steel Corporation under a comprehensive general liability policy, purchased the judgment for $4,000 rendered in favor of the plaintiff Benton and took an assignment of the judgment. The assignment authorized Western Casualty to proceed for the collection of the judgment in the name of Benton, the judgment creditor, and Western Casualty proceeded as assignee in the name of Benton, and Howard Polk proceeded in his own right against the garnishee Canal. Canal answered the writ of garnishment, and in its answer denied that it was indebted to Polk or to the Steel Corporation. The answer was contested by Western Casualty and Polk. Interrogatories were propounded by the garnishee to the defendant Polk and to the garnishor Emmett Benton; and these interrogatories were answered. Interrogatories were also propounded by the garnishee to the Steel Corporation, but these interrogatories were not answered, for the reason that the Steel Corporation was not a party to the garnishment. Motions were filed by the respective parties to require the production of the insurance policies issued by Canal to Stubbs and by Western Casualty to the Steel Corporation, for inspection.
The pleadings having been settled, issue was joined on the garnishee's answer and the contest filed by Western Casualty, assignee, and Polk, the issue being whether or not the garnishee Canal Insurance Company was indebted to the defendant and judgment debtor Howard Polk by virtue of Canal's automobile liability insurance contract No. 343681, issued to Stubbs & Stubbs, and by virtue of the judgment having been rendered against Howard Polk and the alleged resulting liability of Canal to Polk under the terms of said policy.
At the conclusion of the hearing the circuit judge rendered a written opinion, in which he stated that the insurance contract contained in the policy issued by Canal to Stubbs was plain and unambiguous so far as the insured employees were concerned, and that in his opinion the case was controlled by the opinion of this Court in Continental Casualty Company v. Pierce, 170 Miss. 67, 154 So. 279. A judgment was therefore entered dismissing with prejudice as to the plaintiff Emmett Benton (Western Casualty Insurance Company, assignee) and Howard Polk, judgment debtor, the writ of garnishment against Canal Insurance Company.
The appellants' attorneys have assigned and argued two points as grounds for reversal of the judgment of the lower court: (1) That the court erred in dismissing the writ of garnishment issued against Canal Insurance Company, garnishee, with prejudice to the Western Casualty & Surety Company, assignee of the plaintiff Emmett Benton, and Howard Polk, Judgment debtor, and in failing to enter judgment against the garnishee; and (2) that the court erred in failing to enter judgment in favor of the appellant Howard Polk against the appellee-garnishee for attorneys' fees and costs of court incurred by the appellant Howard Polk in defending the suit against him by Emmett Benton.
The applicable provisions of the Canal policy, which are involved in the garnishment proceeding which we have under review in this case, are:
'Under 'Declarations'
'Item 5. The purposes for which the automobile is to be used are 'pleasure and business' unless otherwise stated herein: Commercial.
'(a) The term 'pleasure and business' is defined as personal, pleasure, family and business use. (b) The term 'commercial' is defined as use principally in the business occupation of the named insured as stated in Item 2, including occasional use for personal, pleasure, family and other business purposes. (c) Use of the automobile for the purposes stated includes the loading and unloading thereof.
'Under 'Insuring Agreements'
'I. Coverage A-Bodily Injury Liability: To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, caused by accident and arising out of the ownership, maintenance, or use of the automobile.
'II. Defense, Settlement, supplementary Payments: With respect to such insurance as is afforded by this policy for bodily injury liability and for property damage liability, the company shall:
'(a) defend any suit against the insured alleging such injury, sickness, disease or destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudulent; but the company may make such investigation, negotiation and settlement of any claim or suit as it deems expedient;
'Under 'Insuring Agreements'
'III. Definition of Insured: (a) with respect to the insurance for bodily injury liability and for property damage liability the unqualified word 'insured' includes the named insured, and, if the named insured is an individual, his spouse if a resident of the same household, and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or such spouse or with the permission of either. * * *.
'Under 'Exclusions'
'This Policy Does Not Apply:
* * *
* * *
'(d) under coverage A, to bodily injury to or sickness, disease, or death of any employee of the...
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