Robinson v. United States Fidelity & Guaranty Co.

• Decision Date: 05 January 1931
• Docket Number: 29060
• Citation: 131 So. 541,159 Miss. 14
• Parties: ROBINSON et al. v. UNITED STATES FIDELITY & GUARANTY CO
• Court: Mississippi Supreme Court

131 So. 541

159 Miss. 14

ROBINSON et al. v. UNITED STATES FIDELITY & GUARANTY CO

No. 29060

Supreme Court of Mississippi

January 5, 1931

Division A

APPEAL from circuit court of Hinds county, First district, HON. W H. POTTER, Judge.

Suit by S. A. Robinson and another, copartners trading under the firm name of Robinson Bros. Motor Company, against the United States Fidelity & Guaranty Company. Judgment for defendant and plaintiffs appeal. Affirmed in part, and in part reversed and remanded.

Affirmed in part and reversed in part, and remanded.

F. J. Lotterhos, of Jackson, for appellants.

One assaulted by insured's employee's sustained 'accidental injury' within policy indemnifying employer against loss from claims for injuries accidently suffered.

Georgia Casualty Co. v. Alden Mills, 156 Miss. 853, 127 So. 555.

Policy was not void because its effect was to indemnify insured against consequences of illegal acts of employees in assaulting another.

Georgia Casualty Co. v. Alden Mills, 156 Miss. 853, 127 So. 555.

An injury is accidental when it occurs by reason of an assault made by another person without the forethought and intention of the party injured, and without his doing anything which is the direct cause of the injury.

14 R. C. L. 1260; Childs Personal Property, page 89; 4 Cooley's Briefs on Insurance, page 3159; Vol. 6, pages 5246, 5248, 5584; Vol. 7, page 1249; 20 A. L. R., page 1123; Fidelity & Casualty Co. v. Johnson, 72 Miss. 333, 17 So. 2; Traveler's Insurance Co. v. Dupree, 82 So. 579.

Appellants recognize the rule that a plaintiff is not entitled to recover attorneys fees unless some statute or the terms of the contract entitle him to do so. The policy insures them against liability for loss and/or expense arising or resulting from claims upon the assured. And it furthermore contains the agreement of the company to defend suits brought against the insured to enforce a claim. The force and effect of this language contained in the contract, considered along with the entire contract, amounts to an agreement of absolute indemnity designed to protect the assured against all expense on account of injuries and claims arising therefrom suffered by persons other than employees. The entire burden is placed upon the insurance company, who for a consideration has agreed to substitute itself in the shoes of the assured. Unless the company is required to pay the assured the attorneys fee incurred in the present litigation, the result will be that the assured has not received full indemnity.

Butler & Snow, of Jackson, for appellee.

We frankly say that to sustain the judgment of the court below in so far as the first count of the declaration involved on this appeal is concerned the court must overrule Georgia Casualty Company v. Alden Mills, 156 Miss. 853. Frankly we say that this should be done. In the Georgia Casualty Company case the court has not recognized the distinction between a straight accident insurance policy and a public liability policy as is involved in this case.

The Georgia Casualty Company case, supra, is the third case which has been before the courts of the country and by its decision in this case this court has decided the proposition involved contrary to the construction that has been accepted by all parties to such contracts.

Briggs Company v. Insurance Company, 213 Ill. 334; Headers v. Casualty Company (Ohio), 161 N.E. 278.

In this case the injury to Wells was accidental in so far as Wells was concerned, but Wells was not a party to the contract involved and was not the named insured therein. The named insured was Robinson Bros., and appellants here, and so far as Robinson Bros. , is concerned the injury to Wells was not accidental, but was wilful.

In Fireman's Fund v. Haley, 129 Miss. 525, the court by inference held with our present contention.

A contract is unenforceable where the direct purpose and effect of the contract is to advance or encourage acts in violation of law.

Conithan v. Royal Ins. Co., 91 Miss. 386; Mitchell v. Campbell, 11 Miss. 806; Ham v. Wilson, 123 Miss. 510; 9 Cyc. 466.

If the contract as construed by appellant is of doubtful legality, this proves that it does not cover a wilful assault. When contracts are of doubtful import, one legal and the other illegal, the court will adopt that construction of the contract which upholds its legality.

Riley v. Van Houten, 4 How. 428; Merrill v. Melchion, 30 Miss. 516; Wilkins v. Riley, 47 Miss. 306; Orrell v. May Manufacturing Co., 87 Miss. 632.

The insurer not being obligated by the terms of the contract to pay such an expense, as attorneys fee incurred in the prosecution of this suit, it cannot be held liable therefore, appellant's fine spun theory to the contrary notwithstanding.

Argued orally by F. J. Lotterhos, for appellant.

OPINION

Cook, J.

The appellants, S. A. Robinson and E. B. Robinson, partners, trading under the firm name of Robinson Bros. Motor Company, instituted this suit in the circuit court of Hinds county against the appellee, the United States Fidelity & Guaranty Company, on a public liability indemnity insurance policy, by the terms of which appellee undertook to indemnify the appellants "against liability for loss and/or expenses arising or resulting from claims upon the assured for damages in consequence of an accident occurring within the limits of the United States and Canada during the term of this policy resulting in (a) bodily injury, or death resulting at any time therefrom, suffered by any person or persons not herein excepted." The said policy further provided that "the company does hereby agree (c) to defend in the name and on behalf of the assured any suit brought against the assured to enforce a claim, whether groundless or not, on account of damages suffered, or alleged to be suffered under the circumstances hereinbefore described; (d) to pay the expenses incurred in defending any suit described in the preceding paragraph . . . (e) to reimburse the assured for the expense incurred in providing such immediate surgical relief as is imperative at the time of any accident covered thereunder."

The declaration was in two counts; the first count alleging, in substance, that on or about the 25th day of May, 1928, and at a time when the aforesaid insurance contract was in full force and effect, one G. E. Wells was injured while in the place of business of the appellants, by Dyer Runnells, a salesman employed by the appellants, and that immediately thereafter the appellants carried the said Wells to a hospital for necessary surgical attention, and thereby became liable to pay the sum of five dollars for medical attention to the said Wells, which was thereafter paid by them. It was further averred that the said Wells thereafter filed a suit against the appellants for damages in the sum of five thousand dollars on account of said injuries, alleging, in substance, that, while he was in the appellants' place of business said Dyer Runnells, appellants' agent and employee, without justification or excuse, violently assaulted and struck him a severe blow, and thereby seriously injured him.

It was then averred in the declaration in the case at bar that the appellants gave prompt notice to the appellee ...