Huntington Cab Co. v. American Fidelity & Cas. Co.

• Decision Date: 29 December 1945
• Docket Number: No. 271.,271.
• Citation: 63 F. Supp. 939
• Court: U.S. District Court — Southern District of West Virginia
• Parties: HUNTINGTON CAB CO. v. AMERICAN FIDELITY & CASUALTY CO., Inc.

63 F. Supp. 939

HUNTINGTON CAB CO. v. AMERICAN FIDELITY & CASUALTY CO., Inc.

No. 271.

District Court, S. D. West Virginia.

December 29, 1945.

E. A. Marshall and Jackson N. Huddleston, both of Huntington, W. Va. (Fitzpatrick, Strickling & Marshall, of Huntington, W.Va., on the brief), for plaintiff.

John E. Jenkins, of Huntington, W. Va., for defendant.

HARRY E. WATKINS, District Judge.

American Fidelity and Casualty Company insured a fleet of taxicabs owned and operated by Huntington Cab Company to cover bodily injury to persons, accidentally received by reason of the ownership, maintenance or use of such cabs. Chester Melba, a driver of one of these cabs, carried McCallister, a passenger for hire, to the garage of the cab company where the driver, without any provocation or reason whatever, and without knowledge or authorization of his employer, intentionally and maliciously assaulted the passenger by hitting and beating him with a large and dangerous instrument known as an "air gun," causing severe injuries. Thereafter the passenger sued the cab company and the driver for damages, was awarded judgment in the amount of $2600 and costs of $113.75. The insurance company was duly notified of the suit but refused to defend or pay the judgment, claiming that its policy did not cover this injury. The cab company has brought this action against the insurance company to recover the judgment, costs and counsel fees, which it has paid, amounting in all to $3,013.75. Judgment by default in favor of plaintiff was entered by the clerk when defendant failed to answer. Subsequently, such default judgment was set aside when it was made to appear that defendant had not actually received notice of the suit. Huntington Cab Co. v. American Fidelity & Casualty Co., D.C., 4 F.R.D. 496. There is no dispute as to any of the material facts. The case has been submitted to the court for final decision upon the pleadings and exhibits.

The questions in the case are: (1) Whether this intentional and unprovoked assault was an accident within the meaning of the policy; (2) whether the insurance contract in question was void as against public policy; and(3) whether the injuries were received "by reason of the ownership, maintenance or use" of the automobile within the meaning of the policy.

By the terms of the policy defendant agreed to indemnify plaintiff "against loss from the liability imposed by law upon the assured arising or resulting from claims upon the assured for actual damages to persons accidentally receiving bodily injuries * * * by reason of the ownership, maintenance or use of any of the automobiles * * * only while being operated for the purposes stated and subject to the limitations in Statement VIII of said schedule * * * if such claims are made on account of * * * (1) bodily injury or death suffered by any person or persons, other than the assured or his employees, as the result of an accident occurring while this policy is in force; * * *." Statement VIII described the purposes of operation as being taxi operation only, and provided that "this insurance covers no other use or operation."

In addition to the above provision, the policy contained an endorsement, required of all motor carriers by the Public Service Commission of West Virginia, pursuant to the requirements of Ch. 24A, Art. 5, Sec. 5(g), West Virginia Code, whereby the defendant insurance company agreed "* * * to pay any final judgment recovered against Insured for bodily injury to or the death of any person * * * resulting from the negligent operation, maintenance, ownership or use of motor vehicles under certificate of convenience and necessity or permit issued to the Insured by the Public Service Commission of West Virginia, or otherwise under the Motor Carrier Law * * *."

Were McCallister's injuries suffered as the result of an accident within the meaning of the contract of insurance? Plaintiff says that whether this injury was accidental is to be determined from the standpoint of the person injured; that where the injury comes to him through external force, not of his own choice or provocation, as in this case, then as to him it is accidental and covered by the insurance contract. Defendant contends that whether this injury was accidental depends upon the state of mind of the person who inflicted the injury, rather than the state of mind of the injured person; that this injury was not the result of mere accident, or an unexpected happening resulting from negligence, but was motivated by an intent to injure and is, therefore, not covered by the insurance policy. What was the real purpose and what is the legal import of the words "accidentally receiving bodily injuries * * * by reason of the ownership, maintenance or use of any of the automobiles * * * only while being operated for the purposes stated * * * and * * * suffered * * * as the result of an accident"? These questions call for a consideration of the authorities on the subject.

Objectively, an injury may be accidental, while subjectively it may not be. The bite of a dog or snake may be entirely intentional from the standpoint of the dog or snake, but there is no doubt that it would be accidental from the standpoint of the person receiving the injury. Westerland v. Argonaut Grill, 187 Wash. 437, 60 P.2d 228, 229. The word "accident" is derived from the Latin word "accidere," meaning to fall upon, befall, happen or chance. The courts have given to the word "accident" many varied definitions, depending upon the type of insurance policy and the general context of the policy in which the word is used. The decisions show an effort to get at the meaning of the parties in the particular insurance contract. This means that in some types of insurance policies an intentional and designed injury has been held to be accidental, while in another type of policy it is said that the same intentional injury is not accidental.

In ordinary personal accident and life insurance policies the overwhelming weight of authority is to the effect that even where an injury or homicide has been contemplated and intentionally perpetrated by a third person, if the insured did not provoke it and was himself free from culpability, such injury or death is accidental, in the absence of a specific exclusion in the insurance contract. Harper v. Jefferson Standard Life Ins. Co., 119 W.Va. 721, 196 S.E. 12, 116 A.L.R. 389; Tabor v. Commercial Casualty Ins. Co. of Newark, N. J., 104 W.Va. 162, 139 S.E. 656, 57 A.L.R. 968; 1 Appleman, Insurance Law and Practice, § 486, page 599. See also collected cases in Employers' Indemnity Corp. v. Grant, 6 Cir., 271 F. 136, 20 A.L.R. 1123, and Georgia Casualty Co. v. Alden Mills, 156 Miss. 853, 127 So. 555, 73 A.L.R. 414. Such rule is based upon the proposition that whether an injury is accidental is to be determined from the standpoint of the person receiving the injury rather than from the standpoint of the one inflicting it. Where the injured person was the aggressor in the fight, a different result is obtained.

In the ordinary public liability policy covering a theatre, filling station, or other place of business, injuries resulting from ordinary negligence or even gross negligence are held to be accidental where there was no actual intent to injure. Ohio Casualty Ins. Co. v. Welfare Finance Co., 8 Cir., 75 F.2d 58; Travelers Ins. Co. v. Reed Co., Tex.Civ.App., 135 S.W.2d 611. Where the injury was intentional, and was inflicted by the insured, the courts have uniformly denied coverage on the ground that it is against public policy to insure or protect one against his own deliberate and intentional injury to another. New Amsterdam Casualty Co. v. Jones, 6 Cir., 135 F.2d 191; Hill v. Standard Mutual Casualty Co., 7 Cir., 110 F.2d 1001. The same result is reached where the insured has authorized, or consented to an injury intentionally inflicted by his employe. Floralbell Amusement Corporation v. Standard Surety & Casualty Co. of N. Y., 256 App.Div. 221, 9 N.Y.S.2d 524. Where the injury was intentional, and was inflicted by an employe of an insured in the ordinary public liability policy, some few courts have viewed the matter from the standpoint of the person who inflicted the injury and held that the injury was not accidental and denied coverage. Commonwealth Cas. Co. v. Headers, 118 Ohio St. 429, 161 N.E. 278; Sontag v. Galer, 279 Mass. 309, 181 N.E. 182; Messersmith v. American Fidelity Co., 232 N.Y. 161, 133 N.E. 432, 19 A.L.R. 876; Cordon v. Indemnity Ins. Co. of North America, 6 Cir, 123 F.2d 363; Rothman et al. v. Metropolitan Casualty Ins. Co., 134 Ohio St. 241, 16 N.E.2d 417, 117 A.L.R. 1169. However, the majority of courts have reached a contrary conclusion and held that such injury, although intentionally inflicted, was suffered as the result of an accident within the meaning of this type of contract. Georgia Casualty Co. v. Alden Mills, 156 Miss. 853, 127 So. 555, 73 A.L.R. 408; Robinson et al. v. United States F. & G. Co., 159 Miss. 14, 131 So. 541; New Amsterdam Casualty Co. v. Jones, supra; Archer Ballroom Co. of Nebraska v. Great Lakes Casualty Co., 236 Wis. 525, 295 N.W. 702; Westerland v. Argonaut Grill, 60 P.2d 231; Fox Wisconsin Corporation v. Century Indemnity Co., 219 Wis. 549, 263 N.W. 567; E. J. Albrecht Co. v. Fidelity & Casualty Co. of New York, 289 Ill.App. 508, 7 N.E.2d 626. See also 7 Appleman, Insurance Law and Practice, § 4492, page 322.

In the ordinary automobile personal liability and property damage contract, the courts have likewise denied coverage on the ground of public policy where the injury was intentionally inflicted by the insured himself, or where the insured has authorized or consented to such intentional injury. In the case under consideration the driver of the taxicab, without any provocation, intentionally assaulted the passenger, but without authorization or consent of the insured. In such cases the courts have uniformly denied...