Fidelity and Casualty Company of New York v. Lott

• Decision Date: 11 January 1960
• Docket Number: No. 17761.,17761.
• Citation: 273 F.2d 500
• Parties: FIDELITY AND CASUALTY COMPANY OF NEW YORK, Appellant, v. Edith Joyce Murray LOTT et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

273 F.2d 500 (1960)

FIDELITY AND CASUALTY COMPANY OF NEW YORK, Appellant, v. Edith Joyce Murray LOTT et al., Appellees.

No. 17761.

United States Court of Appeals Fifth Circuit.

January 11, 1960.

John D. Rienstra, King, Sharfstein & Rienstra, Beaumont, Tex., for appellant.

John G. Tucker, Orgain, Bell & Tucker, Beaumont, Tex., for appellees.

Before HUTCHESON, TUTTLE and BROWN, Circuit Judges.

TUTTLE, Circuit Judge.

This is an appeal from a judgment in favor of the survivors of a person killed in connection with an unusual use of an insured automobile. Stating the factual situation as related in the brief of the appellant insurance company:

"Davies, the named insured in a policy of liability insurance issued by Appellant, and three companions were in search of game on a mountainous road in Colorado. Spying three deer slightly below and to their right, Davies brought the insured vehicle to a stop and emerged with his rifle on the left hand side of the vehicle. Leaning over and against the vehicle, and resting his rifle across the top, Davies fired at one of the deer. For some unexplained reason (probably because the muzzle of the rifle did not clear the curved top of the vehicle) the bullet tore through the top of the car, was deflected downward and inflicted the fatal injuries to Murray, who was seated on the right side front seat of the vehicle.

"Murray\'s survivors, who are the Appellees here, brought an action against Davies in the United States District Court for the Eastern District of Texas, Beaumont Division, to recover damages for Murray\'s death. The insured defendant, Davies, made demand on Appellant to defend, which Appellant declined, claiming the accident did not arise out of the ownership, maintenance or use of the insured vehicle. Davies, defended by counsel of his own selection, suffered judgment against him in the sum of $10,000, the maximum recovery under the applicable Colorado death act. Because of Davies\' inability to pay, and being subsequently adjudicated a bankrupt, Murray\'s survivors instituted the present action against Appellant to collect the judgment rendered against Davies, contending that Murray\'s death was caused by accident and arose out of the ownership, maintenance or use of the insured vehicle. Issue being joined, the action was tried before a jury, and on its verdict for Appellees judgment was entered against Appellant."

The applicable provision of the policy was:

"* * * 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."

Appellant contends that the facts were undisputed, as they were, and that "the insuring agreement being unambiguous, it became a question of law whether the coverage existed." We agree that this is so, but we construe this unambiguous insuring agreement as insuring against this loss rather than...