Hart v. North American Acc. Ins. Co

• Decision Date: 20 May 1929
• Docket Number: 27914
• Citation: 122 So. 471,154 Miss. 400
• Court: Mississippi Supreme Court
• Parties: HART v. NORTH AMERICAN ACC. INS. CO

122 So. 471

154 Miss. 400

HART v. NORTH AMERICAN ACC. INS. CO

No. 27914

Supreme Court of Mississippi

May 20, 1929

(Division B.)

1 PLEADING. Pleading must be construed most strongly against pleader.

A pleading must be construed most strongly against the pleader.

2 INSURANCE. Terms of accident policy should be understood in plain, ordinary sense.

Terms used in an accident insurance policy should be understood in their plain, ordinary, and popular sense, rather than in a philosophical and scientific sense.

3. INSURANCE. Where mule, on which insured was riding and which was hitched to wagon, stumbled, precipitating insured to ground, injury was not covered by policy providing indemnity for wrecking of horse-drawn vehicle in or on which insured is riding or driving.

Where insured, at time of accident, was hauling logs on log wagon drawn by team of four mules and was riding one of mules which stumbled, precipitating insured to ground and dragging him some distance after falling, accident was not covered by policy providing indemnity for injury caused by wrecking of private horse-drawn vehicle in or on which insured is riding or driving, since neither the log wagon nor the team was wrecked and insured was not riding or driving in or on the log wagon, and his beneficiary could not recover for his death resulting from accident.

Division B

APPEAL from circuit court of Warren county.

Hon. E L. BRIEN, Judge.

Action by Lillian Hart against the North American Accident Insurance Company. From a judgment dismissing the action, plaintiff appeals. Affirmed.

Affirmed.

Henry, Canizaro & Henry and Brunini & Hirsh, all of Vicksburg, for appellant.

Terms used in an accident insurance policy should be understood in their plain ordinary sense rather than in a scientific or philosophic sense.

Richards v. Standard Accident Insurance Co. (Utah), 17 A. L. R. 1183; Gallagher v. Fidelity, &c., Co., 163 A.D. 556, 148 N.Y.S. 1016; Continental Casualty Co. v. Clark, L. R. A. 1918F, 1007, 173 P. 453; 1 C. J., p. 418; Lewis v. Ocean Acci. & Guarantee Corp., 224 N. Y. 18, 7 A. L. R. 1129, 120 N.E. 56; Salt Lake City v. Salt Lake City Water & Electrical Power Co., 54 Utah 10, 174 P. 1134; Aurnhammer v. Brotherhood Acc. Co. (Mass.), 146 N.E. 47; Commonwealth Ins. Co. v. Chase, 20 Pick. 142, 145; Taber v. China Mutual Ins. Co., 131 Mass. 239; Wood v. Lincoln & Kennebeck Ins. Co., 6 Mass. 479, 482; Proctor v. Adams, 113 Mass. 376, 18 Am. Rep. 500; Chase v. Corcoran, 106 Mass. 286, 288; Atwood v. Cobb, 16 Pick. 227, 229, 26 Am. Dec. 657; Mochel v. Iowa State Travelling Men's Association (Iowa), 213 N.W. 259; Wilson v. Travellers' Insurance Co. (Cal.), 109 P. 366.

The stumbling of a mule, drawing a wagon and ridden by a driver, constitutes the wrecking of a private horse-drawn vehicle.

Schmohl v. Travellers' Insurance Co. (Mo.), 177 S.W. 1108; Aetna Life Ins. Co. v. Vandecar, 86 F. 282, 30 C. C. A. 48; Bigelow v. Insurance Co., 93 U.S. 284, 23 L.Ed. 918; Insurance Co. v. McConkey, 127 U.S. 651, 8 S.Ct. 1360, 32 L.Ed. 308; Insurance Co. v. Seaver, 19 Wall. 531, 22 L.Ed. 155; Van Bokkelen v. Travelers' Ins. Co. of Hartford, 34 A.D. 399, 54 N.Y.S. 307, affirmed in 167 N.Y. 590, 60 N.E. 1121; Anable v. Casualty Co., 73 N. J. Law, 320, 63 A. 92; Banta v. Casualty Co., 134 Mo.App. 222, 113 S.W. 1140; Andrews v. State, 8 Ga.App. 700, 70 S.E. 111; Woods v. State, 67 Miss. 575, 7 So. 495; King v. Travelers' Ins. Co., 101 Ga. 64, 28 S.E. 661; Insurance Co. v. Muir, 126 F. 926, 61 C. C. A. 456; Berling v. Insurance Co., 121 Cal. 458, 53 P. 918, 41 L. R. A. 467, 66 Am. St. Rep. 49; Tooley v. Assurance Co., 24 F. Cas. No. 14,098; Barber v. Insurance Co., 165 Ill.App. 239.

Dabney & Dabney, of Vicksburg, for appellee.

Where an accident insurance policy provided for indemnity for injury caused by wrecking of private horsedrawn vehicle in or on which insured was riding or driving and at the time of the accident, insured was hauling logs on a log wagon drawn by team of four mules and was riding one of the mules which stumbled and precipitated insured to the ground and dragged him some distance after falling; in such case insured is not protected under such policy since neither the log wagon nor the team was wrecked and insured was not riding or driving in or on the log wagon at the time of the accident.

Words used in written contracts should be given their common everyday meaning and definitive refinements should be ignored.

A policy of insurance is a contract between the parties.

LaPorte v. North American Accident Ins. Co. (La.), 109 So. 767; Banks v. State, 16 Ga.App. 401, 85 S.E. 629; National Life Ins. Co. v. Johnson, 118 So. 898.

OPINION

ANDERSON, J.

Appellant brought this action in the circuit court of Warren county against appellee on an accident insurance policy, issued by appellee to James T. Hart, the husband of the appellant, to recover the indemnity provided in the policy for the death of her husband, which, by the terms of the policy, was payable to appellant. Appellee demurred to appellant's declaration, which demurrer the court sustained, and appellant declining to plead further, a final judgment was entered dismissing the suit, from which judgment appellant prosecutes this appeal.

The provisions of the policy upon which the solution of the question involved depends follow:

"This policy provides indemnity for loss of life, limb, sight, or time by accidental means, as herein limited and provided. No 6357161, North American Accident Insurance Company, . . . does hereby insure James Thomas Hart, age fifty-two of Vicksburg, Mississippi, (hereinafter referred to as the insured), subject to the limitations and conditions herein contained, against death or disability resulting directly, independently, and exclusively of all other causes from bodily injuries effected solely through external, violent, and accidental means during the term of this policy, and sustained by the insured in the manner following:

"Paragraph 2. By the wrecking of a taxicab, public omnibus, automobile...