New Amsterdam Casualty Co. v. Jones

• Decision Date: 24 June 1942
• Docket Number: No. 3032.,3032.
• Citation: 45 F. Supp. 887
• Parties: NEW AMSTERDAM CASUALTY CO. v. JONES et al.
• Court: U.S. District Court — Western District of Michigan

45 F. Supp. 887

NEW AMSTERDAM CASUALTY CO. v. JONES et al.

No. 3032.

District Court, E. D. Michigan, S. D.

June 24, 1942.

Mason, Davidson & Mansfield, of Detroit, Mich., for plaintiff.

Bratton & Bratton and Buell Doelle, all of Detroit, Mich., for defendants.

PICARD, District Judge.

This is an action for a declaratory judgment brought by plaintiff to determine the rights of defendants, Oscar Martin and Buell Doelle, in a certain insurance policy, issued by plaintiff to defendant, Larry Jones.

Jones, a gas station proprietor, shot and severely injured Oscar Martin, a customer, over a dispute on the type of oil he had just put into Martin's motor. He served some time in prison for his crime and Martin then sued Jones recovering judgment in the sum of $5,000 for what he claimed was Jones' "wilful, intentional and unprovoked act". Martin seeks garnishment of plaintiff.

Doelle defended Jones in the civil suit and now seeks to recover his attorney fees because the insurance policy which Jones carried with plaintiff provided for defense by plaintiff of any suits, warranted or unwarranted, brought against Jones on account of any "accident".

Plaintiff denies all liability on the theory that the shooting of Martin by Jones was "intentional" and therefore not an "accident".

The facts are unusual and the law applicable calls for several niceties of distinction, the exact wording of the policy covering the question now before this court being important. That policy insures Jones against "bodily injuries or death suffered, or alleged to have been suffered, as the result of any accident occurring while this Policy is in force, by any person or persons not employed by the Assured, by reason of the classified operations of the Assured's trade or business."

Oscar Martin was "not employed by the Assured". The shooting occurred as the result of the sale of oil by Jones to Martin. That sale of oil was part of Jones' business. If Martin suffered "an accident" he is covered by this policy. This is admitted and we must determine just what is the opinion of our courts on this question. Here we find two schools. In the State of Ohio the test is enunciated in Cordon et al. v. Indemnity Ins. Co. of North America, 123 F.2d 363, a decision of our own Sixth Circuit Court of Appeals — "In an appeal from a declaratory judgment declaring that a policy insuring the owner of premises against liability imposed by law on account of bodily injuries accidentally suffered thereon does not insure against an assault willfully committed by the owner's employee, it is the view of the court that the issue is controlled by the decisions of the Ohio Supreme Court in Commonwealth Casualty Co. v. Readers, 118 Ohio St. 429, 161 N.E. 278, and Rothman et al. v. Metropolitan Casualty Insurance Co., 134 Ohio St. 241, 16 N.E.2d 417, 117 A.L.R. 1169, wherein the principle is announced that: `The state of the will of the person by whose agency an injury is caused, rather than that of the injured person, determines whether an injury is accidental.'" (Italics ours.)

This is likewise seemingly the law of Massachusetts as expressed in Sontag v. Galer, 279 Mass. 309, 181 N.E. 182, and of Illinois in Briggs Hotel Co. v. Zurich Gen. Acc. & Liability Ins. Co., 213 Ill.App. 334.

Whether an incident is "an accident" according to these courts seems to depend upon whether the person by whose agency the injury was caused intended the injury. However, the Michigan law does not follow this line of reasoning and we are, of course, bound by the Michigan decisions — Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487.

In the State of Michigan it is uniformly held that where an insured suffers injury at the hands of another, whether intentional or not, he may recover from his "own" insurance company on an accident insurance policy — the theory being that so far as he is concerned the injury he suffered was an accident. Furbush v. Maryland Casualty Co., 131 Mich. 234, 91 N.W. 135, 100 Am.St.Rep. 605; Id., 133 Mich. 479, 95 N.W. 551; Curth v. New York Life Ins. Co., 274 Mich. 513, 265 N.W. 749.

See, also, Ripley v. Railway Passengers Insurance Co., 83 U.S. 336, 21 L.Ed. 469; Robinson v. United States Mutual Accident Association, C.C., 68 F. 825; Interstate Business Men's Accident Association v. Lester, 8 Cir., 257 F. 225; Employers' Indemnity Corporation v. Grant, 6 Cir., 271 F. 136; New York Life Insurance Co. v. Murdaugh, 4 Cir., 94 F.2d 104; Central National Bank of Cleveland v. General American Life Insurance Co., 6 Cir., 105 F.2d 878.

It must be admitted that there is an obvious distinction between these species of cases and those of the kind being herein analyzed and if this genus was the only authority for defendant's position it would be far from controlling. But the Michigan viewpoint is established beyond doubt by the recent decision of Peterson v. Aetna Life Insurance Co., 292 Mich. 531, 290 N.W. 896, where Peterson's Estate was denied the fruits of an insurance policy covering "accidents" to himself on the fact showing that Peterson was killed by the son of the woman that Peterson himself was aiming a gun at and threatening to murder. The court on page 535 of the Peterson case in 292 Mich., on page 898 of 290 N.W., quotes with approval the following from Interstate Business Men's Accident Association v. Lester, supra: "The line of distinction is this: If the party does something which culpably provokes or induces the act causing his injury or death, then the result is not accidental; but, if he is wholly free from culpability himself, the result is accidental as to him, though it may have been within the deliberate intent of the aggressor."

And then the court added — "This distinction is recognized and observed in most of the adjudicated cases. An insured who meets death in an affray in which he was the aggressor cannot ordinarily be said to have suffered his injuries as the result of an accident, for he must be held to have foreseen the result of his wrongful acts."

In the State of Michigan also it is a well-recognized rule that if one is injured as the result of the driver of an automobile knowingly and purposely exceeding the speed limit or intentionally violating any law, the insurance company is liable. Pawlicki v. Hollenbeck, 250 Mich. 38, 229 N.W. 626.

In truth the State of Michigan goes even further. Under what is known as the Guest Passenger Act, the guest passenger cannot recover from the owner of the car for ordinary negligence but can recover only where the driver has been guilty of "gross...