Continental Casualty Co. v. Pierce

• Decision Date: 16 April 1934
• Docket Number: 31187
• Citation: 170 Miss. 67,154 So. 279
• Court: Mississippi Supreme Court
• Parties: CONTINENTAL CASUALTY CO. et al. v. PIERCE

154 So. 279

170 Miss. 67

CONTINENTAL CASUALTY CO. et al. v. PIERCE

No. 31187

Supreme Court of Mississippi

April 16, 1934

Division B

1 INSURANCE.

Liability insurers of both automobiles involved in collision held properly joined in suit by injured person who had recovered judgment against both motorists, where insurers were jointly and severally liable, in that liability on each policy was for entire damage resulting from injury.

2 INSURANCE.

Liability policy held to cover liability for injury to third person from negligent operation of automobile by insured's servant.

3. MASTER AND SERVANT.

Automobile owner held not liable for injuries sustained by employee through negligence of other employee who drove automobile where injured employee and driver were jointly engaged about their employer's business and were therefore "fellow servants."

4. AUTOMOBILES.

Automobile driver held liable to fellow servant who was passenger for injuries sustained through driver's negligence.

5. CONTRACTS.

Contract must be construed as a whole, and all its parts are to be harmonized if possible, so that every word is to be given effect, and no part is to be taken as eliminated or stricken by some other part unless such result is fairly inescapable.

6. INSURANCE.

Liability policy expressly excluding liability for injuries to insured's employees, but insuring "any person... operating... such automobile" against liability, held not to cover liability of one operating the automobile as driver for insured, to employee of insured.

HON. J. D. FATHEREE, Judge.

APPEAL from circuit court of Lauderdale county HON. J. D. FATHEREE, Judge.

Action by Mabel Pierce against the Continental Casualty Company and another. Judgment for plaintiff, and defendants appeal. Affirmed in part and reversed in part.

Affirmed in part and reversed in part.

Chas. M. & Russell Wright, of Meridian, for appellant, Continental Casualty Company.

Several causes of action founded upon distinct contracts cannot be united in the same count for complaint. There must be a separate count for each contract in the declaration or complaint.

5 Encyc. Pl. & Pr. 305, 308; 49 C. J. 155, 156, 381; Andrews Stephen's Pleading (1901) 98, 356, 357; Pomeroy's Code Remedies (1929) 516, 517 and 526; Neely v. Payne, 126 Miss. 854, 89 So. 669; Illinois Central Railroad Company v. Abrams, 84 Miss. 456, 36 So. 542; Y. & M. V. Railroad Co. v. Wallace, 90 Miss. 609, 43 So. 469; Town of Hazlehurst v. Cumberland Telegraph & Telephone Co., 83 Miss. 303, 35 So. 951; State v. Fidelity & Deposit Co., 1 W. W. Harr. 494, 115 A. 267; Taylor v. Thomas, 149 So. 397; State of Mississippi v. Commercial Bank of Manchester, 33 Miss. 474; Shipman on Common Law Pleading 196; Clark on Code Pleading 77, 324.

A policy of liability insurance does not cover risks excepted against.

Beatty v. Employers Liability Assurance Corp., 168 A. 919; Ohio Casualty Co. v. Goodman, 22 P.2d 997; Continental Casualty Co. v. Carver, 14 P.2d 181; Shapiro v. Employers Liability Assurance Corp., 148 N.Y.S. 587; Weiss v. Employers Liability Assurance Corp., 226 N.Y.S. 732; Lucus v. Mueller et al., 198 N.W. 286; State Compensation Fund v. Ind. Ace. Co., 234 P. 116; Leaksville Power & Light Co. v. Georgia Casualty Co., 125 S.E. 123.

A policy of insurance containing a provision as to additional assured, and extending the coverage to such additional assured in the same manner as to the named assured, does not warrant a recovery against the insurer by an employee of the named assured, who has recovered a judgment against the additional assured, under the theory that such employee was not an employee of the additional assured.

Bernard v. Wisconsin Automobile Ins. Co., 245 N.W. 200.

Where the declaration in an action in a state court against two defendants to recover damages for a personal injury alleges a separate and distinct cause of action against each defendant, based upon separate contracts with each, the facts specifically alleged against one constituting no cause of action against the other, the cause as against one defendant which is a citizen of another state is removable.

Ivy v. Am. Ins. Co., 130 S.E. 864; Lynch v. Springfield, etc., 15 F.2d 725; Insurance Co. v. Del. Mutual, 50 F. 246; Chicago, etc., v. N. Y., etc., 24 F. 516; Morell v. Lolande, 271 F. 19; Baty v. Nashville, etc., Ry. Co. et al., 95 F. 368.

In an action by the assignee of the insured, under several insurance policies, the fact that common questions may be involved, both as to law and fact, with reference to the fire, the value of the destroyed property, and the construction of the policies, or the fact that for convenience the defendant companies might, under the law of the state, be joined as defendants, does not create a joint liability on the part of the defendants.

Lynch v. Springfield Fire & Marine Ins. Co., 15 F.2d 725; Manufacturers' Commercial Co. v. Brown Alaska Co., 148 F. 308; Parlin & Orrendorff Imp. Co. v. Frey, 200 S.W. 1143, 250 U.S. 640, 39 S.Ct. 491, 63 L.Ed. 1184.

The true rule of the construction of a contract of insurance is that it should be construed most strongly against the party that drew it, but that does not mean that every case of doubt should be resolved against him.

National Optical Co. v. U. S. F. & G. Co., 235 P. 343.

Dunn & Snow, of Meridian, for appellant, Employers' Liability Assurance Corporation.

We adopt the argument of our co-appellant on the score that the liability, if any, of the appellants respectively, could not be joined in a single count in the declaration, and, we respectfully submit that the attempt to join the said causes of action, if any, in a single count of the declaration, was fatal and that such error could be taken advantage of by a motion to exclude the evidence and that we were not bound to do so by a demurrer to the declaration.

Reily, Parker & Lobrano, of Meridian, for appellee.

If the liability in this case was joint, then there was no separable controversy.

Baker v. Jacksonville Traction Co., 247 F. 718; United States v. Green, 136 F. 618; Baillie v. Backus, 230 F. 711; Adams v. Tolerton, 22 F.2d 863; L. & N. Railroad Co. v. Ide, 29 L.Ed. 63; German-A. M. B. v. Gas Service Corp., 228 F. 827; Parlen & Orendorff Imp. Co. v. Frey, 200 S.W. 1143; 23 R. C. L. 831.

The order of remand is conclusive on the state court and cannot be attacked in that court as erroneous.

U. S. C. A., Title 28, page 378, par. 71; McNulty v. Atlas Portland Cement Co., 249 S.W. 730.

Generally speaking, all joint obligors, that is, all persons whose liability on a contract, or quasi contract, is joint and not several, not only may be joined as parties defendant, but must be joined, unless the rule is modified by statute.

J. B. White's Garage v. Boyd, 115 So. 334; 1 C. J. 1102; Aven v. Singleton, 96 So. 165.

When there are two reasonable constructions of the contract of insurance, one favorable to the insurance company and the other to the insured, it is the duty of the courts to adopt the one favorable to the insured.

New York Life Ins. Co. v. Blaylock, 110 So. 432; Georgia Casualty Co. v. Cotton Mills Products Co., 132 So. 73.

A contract of insurance is construed strictly against the insurer.

Arms v. Faszholz, 32 S.W.2d 781; Mackay v. Commonwealth C. Co., 34 S.W.2d 564; Kimbrough v. National Protective Association, 35 S.W.2d 650; Peterson v. Maloney, 232 N.W. 790; Swift v. Zurich Ins. Co., 297 P. 578; Bernard v. Wis. Auto Ins. Co., 245 N.W. 200.

Under the rules of construing insurance policies adopted by the courts, the Continental Casualty Company has bound itself to pay the judgment obtained in this law suit.

The other appellant herein, Employers Liability Assurance Corporation, has not argued the questions herein involved, and as we see the record, this appellant is not in position to complain about the liability fixed by the trial court against the Employers Liability Assurance Corporation.

Argued orally by Russell Wright, for appellant, and by Marion W. Reilly, for appellee.

OPINION

Anderson, J.

Appellee brought this action in the circuit court of Lauderdale county against appellants, Continental Casualty Company and Employers' Liability Assurance Corporation, on two automobile liability insurance policies, one issued by the Continental Casualty Company to Mrs. Easterling, and the other issued by the Employers' Liability Company to Mrs. Greer, to recover the sum of seven thousand five hundred dollars, the amount of a judgment theretofore recovered by appellee against John Toney, the driver of the Easterling automobile, and Mrs. Griffin, the driver of the Greer automobile, and Mrs. Greer, the owner thereof. The judgment was for damages for injury suffered by appellee as the result of the joint tort of the defendants in that action. The trial of this case resulted in a judgment against appellants on their insurance policies in the sum of seven thousand five hundred dollars, with interest and costs, from which judgment appellants prosecute this appeal.

A history of the litigation up to the time of the present action will be found in Greer et al. v. Pierce, 167 Miss. 65, 147 So. 303. The judgment sued on in this case was affirmed in that decision. Appellee was injured as the result of a collision between two, automobiles in the intersection of a street and avenue in the city of Meridian. One of the automobiles was owned by Mrs. Greer and driven by her employee, Mrs. Griffin; the other automobile was owned by Mrs. Easterling and driven by John Toney, accompanied by appellee. Mrs. Easterling was engaged in the real estate business in the city of Meridian and appellee was one of her employees in and about that business; her duties were to show...