Life & Cas. Ins. Co. of Tennessee v. Whitehurst

• Decision Date: 14 February 1933
• Docket Number: 1 Div. 90.
• Citation: 148 So. 162,25 Ala.App. 366
• Court: Alabama Court of Appeals
• Parties: LIFE & CASUALTY INS. CO. OF TENNESSEE v. WHITEHURST.

148 So. 162

25 Ala.App. 366

LIFE & CASUALTY INS. CO. OF TENNESSEE v. WHITEHURST.

1 Div. 90.

Court of Appeals of Alabama

February 14, 1933

Rehearing Denied March 7, 1933.

Appeal from Circuit Court, Mobile County; J. Blocker Thornton Judge.

Action on a policy of accident insurance by Minnie (also known as Winnie) Whitehurst against the Life & Casualty Insurance Company of Tennessee. From a judgment for plaintiff defendant appeals.

Reversed and rendered.

Certiorari denied by Supreme Court in Life & Casualty Ins. Co. v Whitehurst, 148 So. 164.

Moreau P. Estes and P. M. Estes, both of Nashville, Tenn., for appellant.

John N Allen, of Mobile, for appellee.

SAMFORD, Judge.

The plaintiff in the court below (appellee here) brought suit on a policy of accident insurance, insuring Thelma Whitehurst against the result of bodily injuries, including death effected solely by external, violent, and accidental means strictly in the manner and subject to the provisions stated in the policy. The policy then proceeds to limit the character of accident against which the said Thelma is insured, one of which is (and the only one with which this appeal is concerned): "By the collision of or by any accident to any * * * private motor driven automobile in which insured is riding or driving."

The facts as agreed upon are as follows:

"Prior to the 28th day of August, 1930, the defendant issued to one Thelma Whitehurst (who was known also as "Thelma Wooten") an accident insurance policy which provided, among other things, that the defendant would pay to the plaintiff, who was the beneficiary named in said policy, the sum of One Thousand Dollars ($1000.00) for loss of life of the said insured, Thelma Whitehurst, as the result of bodily injuries received by her during the time said policy was in force, and effected solely by external, violent and accidental means by accident to or collision of any private motor driven automobile in which the insured might be riding, and provided further that in such accident there should be some external or visible evidence on said automobile of the collision or accident, and that, of the injury sustained, there should be a visible contusion or wound on the exterior of the body of insured.

"On the 28th day of August, 1930, while said policy was in full force and effect, and all premiums which had become due thereon were fully paid, the said insured, Thelma Whitehurst, was riding in a private motor driven automobile on a public road in Mobile County, Alabama, and while so riding in said automobile, sustained an injury effected solely by external, violent and accidental means, in the manner following, viz: by being struck in the back of her head with a bullet fired at, through and into the automobile in which she was riding as aforesaid; the injury thus inflicted on the insured causing and leaving a visible wound on the back of her head where the bullet struck.

"The bullet which struck the insured was fired at, through and into said automobile by one of two deputy sheriffs of Mobile County, Alabama, who were standing on or near the road over which said automobile was traveling. These deputies desired to search said automobile, and immediately before firing, attempted to stop it by hailing the driver, but the driver failed to stop because he did not know the identity of the men who hailed him, nor did he know that they were deputies. As the automobile passed the deputies, they fired a number of shots at the rear tires and the gasoline tank located on the rear of the automobile, for the purpose of disabling and causing it to stop, and one of these bullets pierced the glass window forming part of the back of the automobile and struck the insured in the back of her head, as aforesaid. The bullets fired at the automobile and struck the insured in the back of her head as aforesaid. The bullets fired at the automobile, including that which struck the insured, were fired simply for the purpose of disabling the car and causing it to stop, and not at or with the intention of striking any of the occupants thereof. In piercing the rear of said automobile, the bullet which struck the insured caused and left external and visible evidence of the accident on the automobile.

"As the result of being struck in the back of her head by the bullet fired as aforesaid, the said insured, Thelma Whitehurst, died on the 2nd day of September, 1930. At the time she died, the aforesaid policy was in full force and effect.

"Due and proper proofs of the said injury and death of the said Thelma Whitehurst, as required by said policy, were furnished the defendant under date of September 10th, 1930, but the defendant has failed and refused to pay any sum whatever under said policy on account of said injury and death of the insured.

"A copy

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