New Amsterdam Casualty Co. v. Jones

• Decision Date: 23 April 1943
• Docket Number: No. 9329.,9329.
• Citation: 135 F.2d 191
• Parties: NEW AMSTERDAM CASUALTY CO. v. JONES et al.
• Court: U.S. Court of Appeals — Sixth Circuit

135 F.2d 191 (1943)

NEW AMSTERDAM CASUALTY CO. v. JONES et al.

No. 9329.

Circuit Court of Appeals, Sixth Circuit.

April 23, 1943.

COPYRIGHT MATERIAL OMITTED

Stevens T. Mason, of Detroit, Mich. (Mason, Davidson & Mansfield, of Detroit, Mich., on the brief), for appellant.

Robert E. Bratton, of Detroit, Mich. (Bratton & Bratton, and Buell Doelle, all of Detroit, Mich., on the brief), for appellees.

Before SIMONS, HAMILTON, and McALLISTER, Circuit Judges.

McALLISTER, Circuit Judge.

The New Amsterdam Casualty Company insured Larry Jones, an oil station proprietor, against liability for bodily injury suffered by any person not employed by him, as the result of any accident on his premises. Jones shot Oscar Martin in some dispute on the station premises, and served a sentence for willful and felonious assault. Thereafter, Martin sued Jones for damages, was awarded a judgment, and garnisheed the New Amsterdam Casualty Company. Subsequently, the company brought an action in the district court for a declaratory judgment, naming as defendants, Martin and Buell Doelle, the attorney who defended Jones in the civil case, and asking for a determination of their rights under the policy. The company relied upon the claim that the shooting, being intentional on the part of the insured, was not an accident. The district court held that the insurance company was liable as garnishee for the payment of Martin's judgment against Jones, and also, for Doelle's fee in defending Jones; and the company appeals.

The principal questions in the case are whether the intentional shooting of Martin was an accident within the meaning of the policy; whether the insurance contract in question was void as against public policy; and whether the insurance company, as a garnishee defendant, is liable for payment of Martin's judgment against Jones.

From Jones' standpoint, the shooting was not an accident. Whether it was an accident from the standpoint of Martin, and whether the company may be held for payment of damages for the injuries suffered, call for a consideration of the authorities on the subject.

Where an injury is intentionally inflicted upon a person insured under the ordinary accident policy, it is held to be suffered accidentally, and the insurance company is liable for payment, according to the law as laid down by the Supreme Court of Michigan, which is in accord with the great weight of authority. Furbush v. Maryland Casualty Co., 131 Mich. 234, 91 N.W. 135, 100 Am.St.Rep. 605. See collected cases in 20 A.L.R. 1123; 57 A.L. R. 972, 73 A.L.R. 414; 116 A.L.R. 306. This rule is based on the premise that the question whether the injury is an accident, is to be determined from the standpoint of the one suffering it, rather than from the standpoint of the one inflicting it; see Ripley v. Railway Passengers Assur. Co., 20 Fed.Cas. 823, No. 11,854, and cases referred to in Peterson v. Ætna Life Ins. Co., 292 Mich. 531, 535, 290 N.W. 896; and according to the same reasoning, an injury is no less an accident where it is intentionally inflicted by an insured upon another. This construction is not applicable, however, where the injured party is an aggressor in a fight, or blamable for injuries received therein. Martin suffered an accidental injury.

The policy in question insured against liability for accidental bodily injury suffered by any person not employed by the insured, on the oil station premises. It is argued that one cannot insure himself against his own intentional, illegal acts. This contention is grounded on the proposition that such a contract is contrary to public policy and is therefore void. The public policy governing such contracts is that one should not profit from his own wrongful act, and that contracts to commit illegal acts or agreements which have a tendency to encourage unlawful conduct, are not to be sustained.

In this regard, it is to be remembered that the insured is not seeking indemnity for the consequences of his own wrongful conduct; and that the provisions of the contract did not specifically insure against liability for unlawful acts. If the insured were bringing the action, a complete defense could be predicated and sustained on grounds of public policy that he could not profit by securing indemnity for his intentional wrongdoing; and if the policy had specifically insured against liability for intentionally injuring another, the contract would doubtlessly be void for its tendency to encourage illegal conduct.

Public policy is a changing concept and, in the case of a particular state, must be viewed in the light of the legislative acts and judicial pronouncements of that state; and courts are careful not to set aside contracts on grounds of public policy except in a clear case.

As an instance, suicide was formerly a defense to a suit on a life insurance policy. In Northwestern Mutual Life Insurance Co. v. Johnson, 254 U.S. 96, 41 S.Ct. 47, 65 L.Ed. 155, however, it was held, contrary to what had previously been said in Ritter v. Mutual Life Insurance Co. of New York, 169 U.S. 139, 18 S.Ct. 300, 42 L.Ed. 693, that a provision of a life insurance policy that it would be void if the insured died by his own hand within a stated period from the date of the policy, was an inverted expression of incontestability after that period, and meant that the suicide of the insured, sane or insane, after the specified time, should not be a defense. Such provision was upheld, inasmuch as it did not appear that the law of the state concerned adopted a contrary attitude. See note in 13 A.L.R. 674. It is of interest to observe that some states have adopted statutes providing that suicide, unless contemplated when the policy was applied for, shall be no defense in an action thereon. See Iowa State Traveling Men's Ass'n v. Ruge, 8 Cir., 242 F. 762. Under such statutory provisions, it is held that a stipulation in a policy that the company shall only be liable for a portion of the amount stated in the policy, in case of suicide, is void and cannot be set up as a defense. Whitfield v. Ætna Life Insurance Co. of Hartford, 205 U.S. 489, 27 S.Ct. 578, 51 L.Ed. 895. In Cooley's Briefs on Insurance, Vol. 1, p. 842, it is said that, regardless of the question whether suicide is an excepted risk, the procurement of insurance with intent to commit suicide is a fraud on the insurer, rendering the policy void in its inception. It would seem that such a criterion — that the unlawful act be not within the contemplation of the insured at the time of the execution of the policy — is a proper one to be applied in many cases where similar defenses of illegality are relied upon.

For further analogy, in Michigan gross negligence is defined as willful and wanton misconduct. Boyle v. Moseley, 258 Mich. 347, 241 N.W. 849. It does not mean a degree of negligence, but is an intentional failure to perform a manifest duty in reckless disregard of consequences as affecting the life or property of another. Patton v. Grand Trunk Western Railway Co., 236 Mich. 173, 210 N.W. 309; Lett v. Summerfield & Hecht, 239 Mich. 699, 214 N.W. 939; Bobich v. Rogers, 258 Mich. 343, 241 N.W. 854; Johnson v. Fremont Canning Co., 270 Mich. 524, 259 N.W. 660; Schlacter v. Harbin, 273 Mich. 465, 263 N.W. 431. Yet it is not to be supposed that an insurer would not be liable under a liability policy on the ground that the insured was guilty of gross negligence. See Pawlicki v. Hollenbeck, 250 Mich. 38, 229 N.W. 626; Albrecht Co. v. Fidelity & Casualty Co., 289 Ill.App. 508, 7 N.E.2d 626.

In Herrell v. Hickok, 57 Ohio App. 213, 13 N.E.2d 358, plaintiff, while riding as a guest in an automobile in the State of Michigan, suffered injuries alleged to have resulted from the willful and wanton misconduct, or gross negligence, of the defendant driver. Under Michigan statutes, a guest passenger has a right of action against the...