National Casualty Co. v. Mitchell

• Decision Date: 11 January 1932
• Docket Number: 29695
• Citation: 162 Miss. 197,138 So. 808
• Court: Mississippi Supreme Court
• Parties: NATIONAL CASUALTY CO. v. MITCHELL

138 So. 808

162 Miss. 197

NATIONAL CASUALTY CO. v. MITCHELL

No. 29695

Supreme Court of Mississippi

January 11, 1932

Division A

1 INSURANCE.

Neither extent of damage nor cost of repairs was sole test of whether there was "wreck" of taxicab within accident insurance policy.

2. INSURANCE. Where tire blew out simultaneously with collision with curbing, there was "wreck" within passenger's accident policy, though blowout was only damage to taxicab.

The policy sued on provided that insurer would pay insured one thousand two hundred fifty dollars for loss of sight of either eye as result of wrecking of any public taxicab. The word "wreck" is defined as meaning to destroy disable, or seriously damage, and the wreck of an automobile may be either a total or partial destruction thereof.

3 INSURANCE.

Under statute prohibiting changes in limitations by contract, accident policy provision requiring written notice within twenty days after accident held void (Code 1930, section 2294).

HON. E. L. BRIEN, Judge.

APPEAL from circuit court of Warren county HON. E. L. BRIEN, Judge.

Action by Michael J. Mitchell against the National Casualty Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Affirmed.

Hirsh, Dent & Landau, of Vicksburg, for appellant.

There is a conflict in the evidence as to whether appellee did or did not lose the sight of this eye, as claimed by him, in one day and whether or not the condition of the eye disclosed that his eye trouble and the loss thereof was of long standing and prior to the time he claims to have lost the sight thereof.

The blowing out of an automobile tire in no sense constitutes the wrecking of either a public or private conveyance.

Mochel v. Iowa State Traveling Men's Association, 51 A. L. R., 1327, 213 N.W. 259; Aurnhammer v. Brotherhood Accident Company, 145 N.E. 47; Wilson v. Travelers Insurance Company, 190 P. 366; Hart v. North American Insurance Company, 154 Miss. 400, 122 So. 471.

The clause in the policy requiring that the insured give notice of the accident within twenty days was violated by the insured as it appears conclusively that he was not so disabled that it was not reasonably possible for him to give the notice during the time, and the provision being a condition precedent to the right of recovery, the failure to give the notice until thirty-five days after the accident invalidated the policy.

American Natural Ins. Co. v. Waters, 133 Miss. 32, 96 So. 739; Employer's Liability Assurance Corporation v. Jones County Lumber Co., 111 Miss. 763, 72 So. 152.

The plaintiff did not sustain the loss of the sight of his eye, if any, as the result of the wrecking of the taxi, but he lost it, if he lost it at all, as the proximate result of his own acts in standing up in such taxi while it was being recklessly driven, and the sudden stopping thereof, which threw him against the side of the taxi, when and whereby he was injured, if at all.

The promise to insure is not absolute, but conditional. The condition is that the notice, whatever it may be and by whomsoever or whenever given, shall be given. It is a condition precedent to the creation of liability or to the life of the promise; or, put it perhaps in a better way, the giving of the notice is one of the essentials of the cause of action.

Hatch v. United States Casualty Company, 197 Mass. 101, 14 L. R. A. (N. S.) 503; Mattie Tuttle v. Insurance Company, 190 P. 993, 16 A. L. R. 601; Penn Mutual Life Insurance Company v. Keeton, 95 Miss. 708, 49 So. 736.

Robbins & Smith, of Vickburg, for appellee.

The limitation as to the time of giving notice is void.

Secs. 2292, 2294, Miss. Code of 1930; Standard Accident Insurance Company v. Broom, 111 Miss. 409; General Accident, Fire & Life Assurance Co. v. Walker, 99 Miss. 404, 55 So. 51; Dodson v. Western Union Tel. Co., 97 Miss. 104; I. C. R. Co. v. Jordon, 108 Miss. 140; Sovereign Camp W. O. W. v. Miller, 125 Miss. 502; Stuyvesant Ins. Co. v. Smith Motor Co., 135 Miss. 585.

There was a wrecking of the taxi within the terms of the policy of insurance.

Richards v. Standard Accident Ins. Co., 17 A. L. R. 1183; Wilson v. Travelers Ins. Co., 190 P. 366; Aurnhammer v. Brotherhood Acc. Co., 146 N.E. 47; Campbell v. Whoriskey, 170 Mass. 63, 64 N.E. 1700; Proctor v. Adams, 113 Mass. 376, 18 Am. Rep. 500; Chase v. Corcoran, 106 Mass. 286, 288; Ferguson v. Union Mutual Life Ins. Co., 187 Mass. 8, 14, 72 N.E. 358; Lewis v. Brotherhood Accident Co., 194 Mass. 1, at 6, 79 N.E. 802, 17 L. R. A. (N. S.) 714; Hatch v. United States Casualty Co., 197 Mass. 101, 105, 83 N.E. 398; 14 L. R. A. (N. S.) 503, 125 Am. St. Rep. 332, 14 Ann. Cas. 290.

Brunini & Hirsh, of Vicksburg, for appellee.

When the blowout took place this put the taxi out of business. It was a complete wreck in the sense that the car was absolutely prevented from proceeding on its way without remedying the trouble.

Aurnhammer v. Brotherhood Acc. Co. (Mass.), 146 N.E. 47; Mochel v. Iowa State T. M. Ass'n, 213 N.W. 259; Wilson v. Traveller's Insurance Co., 190 P. 366.

The provision of the policy as to time within which notice was to be given is void.

Dodson v. W. U. T. Co., 97 Miss. 104; General Accident, etc., Co. v. Walker, 99 Miss. 404; Taylor v. Farmers Fire Ins. Co., 101 Miss. 480; I. C. R. R. Co. v. Jordan, 108 Miss. 140; Standard Accident Ins. Co. v. Broom, 111 Miss. 409; Stuyvesant Ins. Co. v. Motor Sales Co., 135 Miss. 585; Standard Life & Accident Co. v. Fisher, 80 So. 347.

Argued orally by R. L. Dent, for appellant, and by John Brunini, for appellee.

OPINION

Cook, J.

The appellee filed this suit in the circuit court of Warren county against the appellant, National Casualty Company, seeking to recover one thousand two hundred fifty dollars on an accident insurance policy for the loss of the sight of an eye alleged to have resulted from the wrecking of a public taxicab in which he was riding. At the conclusion of the evidence, the court peremptorily instructed the jury to find for the appellee, and from the judgment entered the insurance company appealed.

The declaration alleged that the appellee received an injury and disability resulting directly, and independent of all other causes, from bodily injuries sustained through external, violent, and accident means, by the wrecking of a public taxicab which was being driven or operated at the time of such wrecking by a licensed driver, plying for public hire, and in which he (the appellee) was traveling as a fare-paying passenger, resulting in the loss of the sight of his left eye.

By subsequent pleadings issue was joined on the following defenses to the suit: First, that the alleged injury to appellee did not result, either directly or indirectly, from the wrecking of the taxicab in which the appellee was a passenger; that his alleged injury did not result, either directly or indirectly, from such a wreck of a taxicab as was and is contemplated by the contract of insurance, and that there was not, in the eyes of the law, or in fact, a wreck of any kind; and second, that if appellee lost an eye on November 12, 1929, as a result of a taxicab wreck, as alleged in the declaration, he wholly neglected and failed to give written notice thereof to the appellant within twenty days from the date of such injury, that it was reasonably possible for him to have given the required notice, but he failed to do so until April 7, 1930, and that his failure to give such notice, in compliance with the insurance contract, forfeited his right under the contract, and precluded a recovery on the policy; and third, that his failure to comply with the terms of the policy, and to give the requisite notice, was a condition precedent to a recovery, and, as no such notice was given for several months after the alleged accident, the appellant, was not liable to appellee in any sum, under the terms of the policy.

The policy sued on provides that the company will pay the assured one thousand two hundred fifty dollars for the loss of the sight of either eye as the result of the "wrecking of any public . . . taxicab . . . which is being driven or operated at the time of such wrecking by a licensed driver, plying for public hire, and in which the assured is traveling as a fare-paying passenger." Section 4 of the standard provisions in the policy provides that "written notice of injury on which claim may be based must be given to the company within twenty days after the date of the accident causing such injury;" and section 11 of the general conditions in the policy provides that "strict compliance on the part of the insured with all the provisions of the policy is a condition precedent to recovery hereunder, and any failure in this respect will forfeit to the company all rights to any indemnity."

The proof shows that the appellee took passage in a taxicab to go to his home on Clay street in the city of Vicksburg, and paid his fare; that the taxicab was a large automobile, with a partition between the front and rear seats; that, when the taxicab neared his home, he stood up to reach over this partition for the purpose of attracting the attention of the taxicab driver, and directing him to the location of his home; that the driver turned the taxicab into the curb, but the brakes on it failed to hold, and it ran against the street curb at a rate of speed of about twelve miles per hour, the left wheel of the taxicab running up onto the curb, and that by this impact of the wheel against the curb the left front tire was blown out, and the appellee was violently thrown against the partition between the seats, resulting in the loss of the sight of his left eye. The taxicab driver testified that other than the blowout of the tire there was no damage to...