Commercial Cas. Ins. Co. v. Tri-State Transit Co. of La.

• Decision Date: 24 March 1941
• Docket Number: 34483.
• Citation: 1 So.2d 221,190 Miss. 560
• Court: Mississippi Supreme Court
• Parties: COMMERCIAL CASUALTY INS. CO. v. TRI-STATE TRANSIT CO. OF LOUISIANA, Inc.

1 So.2d 221

190 Miss. 560

COMMERCIAL CASUALTY INS. CO. v. TRI-STATE TRANSIT CO. OF LOUISIANA, Inc.

No. 34483.

Supreme Court of Mississippi

March 24, 1941

Forrest B. Jackson, J. W. Young, and Joe N. Friend, all of Jackson for appellant.

Morse Bacon & Shands, of Jackson, for appellee.

McGEHEE Justice.

As a common carrier of passengers for hire, on December 28, 1938 the appellee, Tri-State Transit Company of Louisiana, Inc. operated an automobile bus from the City of Jackson to and from the station of Whitfield, a distance of approximately ten miles, and as such carrier it was protected by an automobile liability policy of insurance issued by the appellant, Commercial Casualty Insurance Company, whereby the said insurer agreed (1) to indemnify the insured "against loss from the liability imposed by law upon the insured arising from claims against the insured for damages caused by accidents growing out of the ownership, maintenance or use of any of the automobiles ennumerated and described * * * if such claims are made on account of bodily injury or death suffered by any person or persons * * * as the result of an accident occurring while this policy is in full force and effect * * *"; and (2) to "Defend in the name and on behalf of the insured any claim or suit, whether groundless or not, of which notices are given to the Company as hereinafter required, on account of bodily injury or death * * * provided such claim results from an accident or alleged accident covered by this policy * * *".

The judgment herein appealed from is for the sum of $1,069.96 recovered by the appellee transit company against the insurer, and represents an amount paid out by the insured in compromise and settlement of a suit for damages filed against it by one Andrew Laws on account of the death of his wife Pinkie Laws, alleged to have been caused by an accident growing out of the ownership, maintenance or use of an automobile bus operated by the said transit company on the date aforesaid, and for expenses and attorneys' fees expended by the insured in connection with the defense thereof, the said amount being deemed by the insured in good faith to be a reasonable and advantageous settlement of the claim, including the expenses incurred in preparing to defend the suit, after due notice and demand upon the insurance company in that behalf and its refusal to acknowledge any responsibility in connection therewith.

It was alleged in the declaration thus filed by Andrew Laws against the appellee transit company that on the said 28th day of December, 1938, at about 6 o'clock A.M., his wife became a passenger for hire from Jackson to Whitfield, Mississippi, and that when the automobile bus on which she was riding had reached a point approximately one mile of her destination, the same "broke down and came to a stop * * *, due to the negligence of the defendant, its agents and servants;" that when the said bus stopped and could not proceed upon its journey due to mechanical or other defects, which were known to or could have been known to the defendant if the proper inspection of the bus had been made, the driver thereof announced to the plaintiff's wife and to the other passengers thereon that they "would be compelled to walk to their destination because the automobile bus had broken, become disabled and would and could go no further;" that the bus driver made no effort to provide other means of transportation for her and the other passengers to reach their destination; and that the plaintiff's wife, over her protest, "was compelled to walk for approximately one mile on that inclement, bitterly cold and damp morning * * * over the frozen ground and a plowed field in order to complete the journey, whereby she was exposed to the said inclement and bad weather, and then and there contracted a cold and pneumonia, from which she died on January 6, 1939."

The sole question for decision on this appeal is whether or not this declaration stated a case such as the insurance company was obligated to defend under the contract of insurance sued on herein. That is to say, whether the facts alleged are sufficient to show, if true, that the death of Pinkie Laws resulted "from an accident or alleged accident covered by the policy",-an accident "growing out of the ownership, maintenance or use of any of the automobiles ennumerated and described" in the policy. It is immaterial that the proof made upon the trial of the present suit may have disclosed that Pinkie Laws left the bus without being required to do so either by the bus driver or the existing circumstances, since the proof in that behalf should have been presented in the defense of the suit brought by Andrew Laws against the insured. The duty of the insurer to defend that suit is to be measured by the allegations of the declaration in that case, because the policy required the insurer to defend "any claim or suit, whether groundless or not * * * on account of bodily injury or death * * * provided such claim results from an accident or alleged accident covered by the policy", which may have grown out of the ownership, maintenance or use of any of the automobiles covered therein. The term "alleged accident", as used in the policy, would not require the insurer to defend a suit brought...