Bryant v. State Farm Mut. Auto. Ins. Co., 46415

• Decision Date: 29 November 1971
• Docket Number: No. 46415,46415
• Citation: Bryant v. State Farm Mut. Auto. Ins. Co., 254 So.2d 898 (Miss. 1971)
• Parties: Vera Harvey BRYANT and James Lawrence Harvey v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
• Court: Mississippi Supreme Court

Page 898

254 So.2d 898

Vera Harvey BRYANT and James Lawrence Harvey v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.

No. 46415.

Supreme Court of Mississippi.

Nov. 29, 1971.

Rehearing Denied Dec. 20, 1971.

Davidson & Beach, Roland C. Lewis, Jackson, for appellant.

Lipscomb, Barksdale, Steen & Caraway, Jackson, for appellee.

GILLESPIE, Chief Justice:

State Farm Mutual Automobile Insurance Company (State Farm) issued to James L. Harvey an insurance policy with the following coverage:

Insuring Agreement IV-Automobile Death Indemnity, Specific Disability and Total Disability Insurance. Coverage S Division 1-Death Indemnity. To pay the principal sum stated as applicable in the exceptions of the declarations in event of the death of each insured which shall result directly and independently of all other causes from bodily injury caused by accident and sustained by the insured while occupying or through being struck by an automobile, provided the death shall occur: * * *.

The policy contained the following exclusion:

Insuring agreement IV does not apply:

(a) to bodily injury sustained in the course of his occupation by any person while engaged (1) in duties incident to the operation, loading or unloading of, or as an assistant on, a public or livery conveyance or commercial automobile, or (2) in duties incident to the repair or servicing of automobiles; * * *.

James L. Harvey sustained fatal injuries on October 29, 1964, and died the next day. His heirs, consisting of his widow and son (plaintiffs), sued State Farm on the policy and charged in count one of their declaration that Harvey's death resulted from an accident sustained while occupying an automobile, and the second count charged that his death resulted from being struck by an automobile. State Farm denied liability, the case was tried, and the jury returned a verdict for State Farm. Judgment was entered for defendant and plaintiffs appealed.

A violent collision occurred on Highway 63 between Moss Point and Pascagoula, when a truck owned and operated by Jackson Packing Company of Jackson, Mississippi, ran into the rear of a garbage truck owned and operated by Jackson County. Immediately after the collision, Everett C. Poe, who was working on the garbage truck, went around to the Jackson Packing Company truck and found James L. Harvey hanging out of the driver's side, with his foot cought under the foot pedal. Harvey, who was one of two drivers assigned to the Jackson Packing Company truck on the day of the accident, was conscious and talked to Poe as the latter assisted him out of the truck. Charles Crout, another Jackson Packing Company employee occupying the truck, was apparently killed instantly. His body was pinned in the truck and a wrecker was required to pull the truck part in order to free Crout's body.

Poe testified that after he had pulled Harvey two or three feet from the truck, he laid Harvey down on the black-top and had his hand under Harvey's head. Poe further testified that a taxicab suddenly sideswiped the rear of the Jackson Packing Company truck, skidded along side, and 'the next thing I knew I was under that truck part of the way, and I got out.' Poe said that although the taxicab did not strike him, it did hit Harvey. Harvey was taken to the hospital and died the next day of injuries.

Plaintiffs assign many errors involving the giving of instructions at the request of the defendant and the refusal of instructions requested by plaintiffs. One group of assignments of error involve the question of whether the Jackson Packing Company truck was a 'commercial automobile' within the meaning of the exclusion clause of the policy. Plaintiffs contend that the provisions of the policy this regard are ambiguous, that the exclusion only excludes from coverage automobiles ¹ held out for use by the public at large, and that the jury should determine whether the Jackson Packing truck was a commercial automobile. These contentions are without merit.

The proof showed without dispute that the Jackson Packing Company truck was an International Model 1800, tandem refrigerated van, with ten wheels and a 40,000 pound capacity. It was used for the exclusive purpose of hauling meat and was loaded at the time of the accident. It was kept at the Jackson Packing Company plant when not in use, and drivers were not permitted to use it for personal purposes. Harvey and Crout were both assigned to drive the truck to the Pascagoula area the day of the fatal accident, and both men were in the truck at the time of the collision.

The case of...