Jernigan v. Allstate Insurance Company, 17582.

• Decision Date: 12 August 1959
• Docket Number: No. 17582.,17582.
• Citation: 269 F.2d 353
• Parties: Dorothy Milam JERNIGAN, Appellant, v. ALLSTATE INSURANCE COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

269 F.2d 353 (1959)

Dorothy Milam JERNIGAN, Appellant, v. ALLSTATE INSURANCE COMPANY, Appellee.

No. 17582.

United States Court of Appeals Fifth Circuit.

August 12, 1959.

Louis B. Graham, New Orleans, La., for appellant.

F. Carter Johnson, Jr., New Orleans, La., Porteous & Johnson, New Orleans, La., for plaintiff-appellee.

Before RIVES, Chief Judge, and CAMERON and JONES, Circuit Judges.

CAMERON, Circuit Judge.

Appellee, Allstate Insurance Company, brought this action in the lower court seeking declaratory judgment that it was not liable under its automobile liability policy issued to William B. Reites, insured, for the death of Mack Franklin Jernigan and damage to his automobile, on the ground that Beatrice Adams, insured's aunt operating the automobile covered by said policy, intentionally and willfully drove said automobile over said Jernigan, inflicting the injuries from which he died. The court below, sitting without jury and trying the case upon a written stipulation of facts, entered judgment in favor of appellee upon the grounds charged in the complaint and dismissed on the same grounds the counterclaim of appellant Dorothy Milam Jernigan, widow and sole survivor and beneficiary of decedent, claiming damages for the death of said Jernigan and damages to his automobile.

The question presented by the appeal is whether the occurrence resulting in Jernigan's death and damage to his car was an accident under the terms of the policy introduced in evidence in the court below. The findings of fact based upon the stipulation of the parties embraced these salient facts:

That insurer issued to insured an automobile liability policy covering his Chevrolet automobile, agreeing to pay all sums insured should become obligated to pay for personal injuries sustained by any person caused by accident, which policy was extended to cover those using the automobile with insured's permission and included assaults as accidents if not committed by or at the direction of the insured;¹ that insured permitted his aunt, Beatrice Adams, a licensed and registered driver, to drive said car at the time and place of the injuries involved without knowledge that she was under any mental stress or infirmities; that said aunt deliberately and maliciously drove the automobile against Jernigan, and operated it back and forth over his prostrate body inflicting injuries resulting in his death, and damage to his automobile to the extent of $498.70; that appellant had the sole and exclusive right of action for the death of said Jernigan, and as administratrix of his estate for collection of the property damage; that a lunacy commission had been appointed at the request of her attorneys, which upon inquiry found that said aunt was legally insane under the McNaghten formula, for the purpose of considering her criminal responsibility for the acts committed.

The court below concluded as a matter of law that said Beatrice Adams deliberately and intentionally drove the automobile over the body of said Jernigan, inflicting injuries resulting in his death, and that said injuries were not caused by accident within the terms of the policy, and that, therefore, appellee was entitled to the judgment it prayed for and that appellant's counterclaim should be dismissed.

This appeal challenges the correctness of that conclusion, presenting to us a question of law upon which the courts of Louisiana have not passed directly. We have concluded that, under the general law which the courts of Louisiana would probably follow, the injury and property damage were caused by accident, and that the court erred in reaching the conclusions above stated.

The question of law before us is, therefore, whether an assault comes within the coverage of the policy as being bodily injury "caused by accident." Where, as here, the question involves the deliberate commission of assault, the definition of the term "accident" is, under most decisions, arrived at by deciding whether the occurrence is viewed from the standpoint of the person committing the assault or that of the injured person. The cases dealing with this question are collected in a note beginning at page 1019 of 33 A.L.R.2d. The general rule distilled from these cases by the author of the note is thus stated.²

"It is apparently the more widely accepted view that an assault constitutes an `accident,\' and that injuries therefrom are `accidentally sustained,\' within the coverage of liability insurance policies. * * *

"The determination whether an assault constitutes an `accident\' appears to depend on the person from whose standpoint the court views the occurrence. Thus, courts which have come to the conclusion that it is an `accident\' look at it from the view of the injured party, while those reaching a contrary view look at it from the standpoint of the aggressor, the person making the assault."³

This majority rule lists cases from fourteen states supporting it and seven states taking the minority view.⁴ Probably the oldest and most cited case is Georgia Casualty Co. v. Alden Mills, 1930, 156 Miss. 853, 127 So. 555, 73 A.L. R. 408, Examination of Shepard's Citations shows that this case has been cited twenty-nine times and that it has been followed in all sections of the country. The insurance policy there involved contained no mention of assaults, so that the establishment by that case and others of similar vintage of the legal principle that an unprovoked assault is an accident was not aided by any policy provisions.

A decision of this Court applying Mississippi law is listed in the annotation as supporting the majority view and it covers several of the questions with which we are dealing here, Western Casualty & Surety Co. v. Aponaug Manufacturing Co., 5 Cir., 1952, 197 F.2d 673. The named assured there was Aponaug Manufacturing Co., and recovery by the Company of damages it had paid the injured party was upheld in a suit against the insurer growing out of an assault committed by Aponaug's president who was classified as an insured under the policy definition of "Insured". Both the Definitions Clause and the Assault Clause were in substantially the same words as those of the policy now before us. Some of the language of that decision is applicable here:⁵

"The law is settled in Mississippi that a person who has been assaulted and injured by another, without any provocation on his part, has suffered an accidental injury. * * *

"The definition of the word `insured\' so as to include persons other than the named insured was intended to extend and had the effect of extending the coverage of the policy to such other persons. Unless the intention of the parties is otherwise clear, that definition should not be construed so as to restrict or limit the coverage enjoyed by the named insured. Further, that definition is of `the unqualified word "insured"\'.

"As to the `condition\' of the policy specifically dealing with assault and battery, it is clear that when construed according to the Mississippi law, an assault by an agent, not provoked by the party assaulted, would come within the protection of the policy covering injuries caused by accident, unless specifically excluded therefrom. Does the qualifying clause `unless committed by or at the direction of the Insured\' amount to such an exclusion? The reasonable construction of that clause, it seems to us, is that it was inserted out of deference to the question of public policy involved in insurance indemnifying against an insured\'s willful act."

As stated, neither the court below nor the litigants here have cited any Louisiana cases in point. In deciding,...