Merchants Co. v. Hartford Accident & Indemnity Co.

• Decision Date: 15 May 1939
• Docket Number: 33701
• Citation: 188 So. 571,187 Miss. 301
• Parties: MERCHANTS CO. et al. v. HARTFORD ACCIDENT & INDEMNITY CO. et al
• Court: Mississippi Supreme Court

188 So. 571

187 Miss. 301

MERCHANTS CO. et al. v. HARTFORD ACCIDENT & INDEMNITY CO. et al

No. 33701

Supreme Court of Mississippi, Division A

May 15, 1939

Suggestion Of Error Overruled January 2, 1940.

APPEAL from the chancery court of Forrest county HON. BEN STEVENS Chancellor.

Suit by the Merchants Company and another against the Hartford Accident & Indemnity Company and another on a general liability insurance policy and an automobile liability policy. From an interlocutory decree for defendants complainants appeal. Affirmed and remanded.

Affirmed and remanded. Suggestion of error overruled.

Watkins & Eager, of Jackson, for appellants, Saint Paul Mercury Indemnity Company.

The sole issue, as we see it, is whether or not said accident arose out of the ownership, maintenance or use of the truck which became stuck. If it did, the ruling of the lower court was correct. If the accident did not arise out of the ownership, maintenance, or use of the automobile the lower court should have sustained the general demurrer of the Saint Paul Company and overruled the general demurrer of the Hartford Company.

Insofar as we can determine this is a question of first impression in this State. We submit, however, that although the question has not been raised on numerous occasions there is a definite and well recognized line of authorities which hold that such an accident is covered by the public liability policy rather than by the automobile liability policy.

Caron v. American Motorists' Ins. Co. (Mass.), 178 N.E. 286; Luchte v. State Automobile Mutual Ins. Co. (Ohio), 197 N.E. 421; Steir v. London Guaranty & Accident Co., 237 N.Y.S. 40.

There can be liability imposed upon a policy of automobile liability insurance if the accident arises directly out of the use of this extraneous object with the automobile. Where however, the act of negligence which causes the injury is independent of the use of the object with the automobile the accident cannot be said to have arisen out of the use of the object with the automobile. This case presents a typical example. The poles were temporarily used with the automobile to get it out of the mud. After the truck was out and after all use of the poles with the truck had been completed, assured committed a negligent act in failing to remove the poles from the road. This negligent act, in failing to remove the poles from the road after their use with the automobile had ceased, and not their use with the automobile, caused an injury to a traveler on the highway twelve hours later.

Mullen v. Hartford Acc. & Ind. Co. (Mass.), 191 N.E. 394; U.S. F. & G. Co. v. Breslin (Ky.), 49 S.W.2d 1011; Stammer v. Kitzmiller (Wis.), 276 N.W. 631; Philadelphia Stockyard Co. v. Maryland Casualty Co., 100 Pa. S.Ct. 459.

In the case of John Alt Furniture Company v. Maryland Casualty Company, C. C. A. 8th, 88 F.2d 36, it appeared that the assured furniture company had a general public liability insurance policy with Maryland Casualty Company; that it had an automobile liability policy covering its trucks with the Saint Paul Mercury Indemnity Company; that the provisions of the policy were substantially the same as those now before the court; that the assured went to deliver certain furniture to an address in St. Louis, Mo., and when the assured's truck loaded with the furniture reached its destination, and in order to take the furniture from the truck into the house, it first became necessary to remove a door, which assured leaned against a clothes line. This door subsequently fell and injured a party, who secured a judgment against the assured furniture company. The Circuit Court of Appeals for the 8th Circuit held that this accident came within the coverage of the general public liability policy.

If it can be said that there is liability under the automobile liability policy in this case, the coverage for accidents arising out of the ownership, maintenance, or use of an automobile will have been extended by this court to include any extraneous object temporarily used with the automobile for an indefinite length of time after its use with the automobile has terminated.

We most respectfully and earnestly submit that an accident does not arise out of the ownership, maintenance or use of an automobile and is covered by the terms of the general liability policy where an extraneous object is temporarily used with the automobile and where the negligence which caused the injury occurs after its use with the automobile has ceased and where the injury occurs twelve hours or an appreciable length of time after its use with the automobile has ceased.

Green, Green & Jackson, of Jackson, for appellant, The Merchants Company.

The position of The Merchants Company, as shown by its bill of complaint, and as indicated by its assignment of errors herein is that either the Saint Paul Mercury & Indemnity Company or the Hartford Accident & Indemnity Company is liable to it for the Fifteen Hundred Dollars paid in settlement of the suit of A. Hardin Grubbs against it in Simpson County, Mississippi, on the agreement and stipulation.

It is immaterial which of the defendants is held liable to The Merchants Company, and in order to fully protect its rights, it was deemed advisable for The Merchants Company to file separate appeal as to the dismissal of the Hartford Accident & Indemnity Company, and as to the insurance agents, defendants. It is understood that the Saint Paul Mercury & Indemnity Company will take the laboring oar as far as its liability is concerned, and that the Hartford will likewise assume the burden insofar as its liability is concerned. One or the other must be liable. The accident resulting in injuries to A. Hardin Grubbs arose either out of the "ownership, maintenance and use of the automobile" under the policy issued by the Saint Paul Mercury & Indemnity Company, or it arose out of the public liability for the negligence of the servants of The Merchants Company under the policy issued by the Hartford Accident & Indemnity Company. Both companies denied that either was liable and assumed that the other had the liability. Hence the litigation.

We submit, therefore, that the chancellor was correct in determining that the Saint Paul Mercury & Indemnity Company was liable to The Merchants Company for the Fifteen Hundred Dollars, and if he was in error in that instance, then, certainly he was in error in holding that the Hartford Accident & Indemnity Company was not liable.

Hannah, Simrall & Foote, of Hattiesburg, for appellee.

The accident arose out of ownership, maintenance, or use of truck.

It is respectfully submitted that the accident in question falls within the coverage of the St. Paul Company's policy, one of the insuring agreements of this policy being "To pay on behalf of the assured all sums which the assured shall become obligated to pay by reason of the liability imposed upon him by law for damages, . . . sustained by any person or persons, caused by accident and arising out of the ownership, maintenance or use of the automobile."

Liberty Mut. Ins. Co. v. McDonald (1938), 97 F.2d 497; Mullen v. Hartford Acc. & Ind. Co. (Mass., 1934), 191 N.E. 394.

In order for this accident to arise out of the ownership maintenance or use of the Merchants Company's truck and to fall within the coverage of the St. Paul Company's policy, it is not necessary that the ownership, maintenance, or use of the truck be the proximate cause of the injury. The language of the St. Paul Company's policy is very broad and does not cover accidents ...