St. Paul Mercury Indemnity Co. of St. Paul v. Randel

Decision Date18 January 1937
Docket Number32515
CourtMississippi Supreme Court
PartiesST. PAUL MERCURY INDEMNITY CO. OF ST. PAUL v. RANDEL

Division B

1 INSURANCE.

Evidence that insured motorist swerved left to avoid collision with automobile ahead, which had stopped without pulling to side and struck curb on neutral ground throwing motorist forward and physician's testimony that he discovered sensitive condition in side of motorist's abdomen and that thereafter her gall bladder duct was found to be inflamed, held to establish that insured was injured by "external, violent and accidental means" by striking steering wheel, so as to permit recovery under indemnity policy.

2. TRIAL.

Instruction that motorist, suing on indemnity policy, had been guilty of violating city speed ordinance at time of accident, held properly refused in absence of plea of negligence in mitigation of damages, where violation breached no condition of policy, since violation could only be availed of, if at all, under such a plea.

HON. JULIAN P. ALEXANDER, Judge.

Appeal from the circuit court of Madison county HON. JULIAN P. ALEXANDER, Judge.

Suit by Mrs. L. T. Randel against the St. Paul Mercury Indemnity Company of St. Paul. From a judgment for plaintiff, defendant appeals. Affirmed.

Affirmed.

Watkins & Eager, of Jackson, and Powell & Powell, of Canton, for appellant.

The learned trial court erred in refusing to peremptorily instruct the jury to retain a verdict for the appellant.

The burden of proof is upon the appellee, and the appellee failed to prove that the alleged injury was caused solely through external, violent and accidental means.

National Assn. of Railway Postal Clerks v. Scott, 155 F. 92; National Masonic Assn. v. Shryock, 73 F. 774; Tuttle v. Pacific Mutual, 58 Mont. 121, 190 P. 993, 16 A.L.R. 607; Rock v. Travelers' Ins. Co., 156 P. 1029.

Assuming that appellee did receive the alleged injury, it was not a personal injury caused solely by external violent and accidental means within the meaning of the policy sued upon.

Whitehead v. Railway Mail Assn., 269 F. 25; Maryland Casualty Co. v. Spitz, 246 F. 817; Carswell v. Railway Mail Assn., 8 F.2d 612; Baldwin v. North American Accident Ins. Co., 22 F.2d 111; Pope v. Prudential Life Ins. Co. of America, 29 F.2d 185; Nickman v. New York Life Ins. Co., 39 F.2d 763.

It is our contention that the alleged injury was merely an accidental result, but the means employed by the appellee were her intentional acts and not accidental.

Parker v. Provident Life & Acc. Ins. Co., 178 La. 977, 152 So. 583; Smith v. Metropolitan Life Ins. Co., 155 So. 789; Stone v. Fidelity & Cas. Co. of New York, 133 Tenn. 672, 182 S.W. 252, L.R.A. 1916D 536.

Appellee knew that she was driving around thirty miles per hour; that she was in a hurry; that directly ahead was another motor vehicle; that she sounded her horn; and she further knew that instead of keeping her eyes fixed on the vehicle in front, and which she was fastly overtaking, she turned her head to look aside at something else and without retarding her rapid speed, and then when she looked back she found she was too close on the forward vehicle to stop without a collision, and what she then did was to purposely and intentionally turn her automobile slightly to the left so that the left front wheel and the left rear wheel mounted the little neutral ground space, and she continued on around the forward car. The evidence shows that she could have turned to the right and passed on the pavement, either method was open to her, and her every act was the natural result of her own intentions. There is a distinction between accidental death, and death resulting from accidental means.

Lavender v Volunteer State Life Ins. Co., 171 Miss. 169, 157 So. 101; Boggan v. Provident Life & Acc. Ins. Co., 79 F.2d 721.

The learned trial court erred in sustaining appellee's objection to the introduction by appellant in evidence of ordinance No. 455 of the city of Canton, Mississippi, regulating speed of motor vehicles.

We respectfully submit that appellee stands charged with knowledge of the law, and, therefore, she not only knew that she was in a hurry, but in such a hurry that she was driving at exactly twice the maximum speed permitted by law. The violation of the statute constituted negligence on her part. This is elementary.

Furthermore, appellee was violating the provisions of section 5569 of the Mississippi 1930 Code in operating her motor vehicle in excess of twenty miles per hour, not to mention the fact that she was also violating the statute in operating her vehicle without having due regard to the use and traffic of the highway. We, therefore, respectfully submit that appellee, having thus intentionally created the entire situation, and the result being brought about purposely and intentionally, cannot now be heard to say that such result was through external, violent, and accidental means.

Ray & Spivey and F. S. Danning, all of Canton, for appellee.

The rule, supported by the great weight of all of the authorities, is that an injury is caused by accidental means, (a) where it is the result of an act which is accompanied or immediately preceded by some unexpected or unforeseen occurrence, or (b) where the injury is the unforeseen, unexpected and unusual result of acts performed in the usual and customary manner.

McCarthy v. Traveler's Ins. Co., 8 Biss. 362, Fed. Cas. No. 8682; Wright v. Aetna Life Ins. Co., 10 F.2d 281, 46 A.L.R. 225.

If the injury to an insured person results in some greater or less degree from his own acts, and the evidence be such that the jury may fairly find that such result was one which he did not and could not have reasonably anticipated, and did not intend to produce, it is an accident, and is caused by accidental means.

Rowe v. United Commercial Travelers of America, 172 N.W. 454, 4 A.L.R. 1235; Standard Life & Acc. Ins. Co. v. Schmaltz, 66 Ark. 588, 74 Am. St. Rep. 112, 53 S.W. 49; Atlanta Acc. Assn. v. Alexander, 104 Ga. 709, 42 L.R.A. 188, 30 S.E. 939.

In Bailey v. Interstate Casualty Co., 158 N.Y. 723, 53 N.E. 1123, affirming without opinion 8 A.D. 127, 40 N.Y.S. 513, it was held that injuries received by a physician who was accustomed to taking hypodermic injections, caused by his carriage starting suddenly while he was in the act of using a, needle for such purpose and causing the needle to be injected more deeply than he intended, would sustain an action on a policy similar to the one here involved.

Lickleider v. Traveling Men's Assn., 166 N.W. 363, 168 N.W. 884, 3 A.L.R. 1295; United States Mut. Acc. Assn. v. Barry, 131 U.S. 100, 33 L.Ed. 60; Pervanger v. Union Cas. & Surety Co., 81 Miss. 32, 37 So. 461.

On the great weight of all of the authorities we respectfully submit that it cannot be said as a matter of law that the injuries received by appellee were not effected "solely through external, violent and purely accidental means," because, (a) her act in driving upon the curb, was not her voluntary act but an act performed under mental force impelled by fright or the instinct of self preservation incited by the unforeseen, unexpected and unusual contingency of having had another car stop suddenly in front of her; and (b) even if she had deliberately driven her car upon the curb, which as shown by the evidence was only a five inch elevation, under the rule announced in United States Mut. Acc. Assn. v. Barry, and in Atlanta Acc. Assn. v. Alexander, supra, the jury was at liberty to say that the act which preceded the injury, i. e., being thrown upon the steering wheel or otherwise injured, was "something unforeseen, unexpected and unusual" under the circumstances, and that the injury was accidental.

No error was committed in sustaining appellee's objection to the introduction of ordinance No. 455 of the city of Canton, because the violation of said ordinance was not pleaded by appellant. One who bases his cause of action or defense on an ordinance or by-law must plead it specially. If not duly pleaded, it cannot be proved.

43 C. J. 577.

The sole purpose in offering the ordinance in evidence was to prove negligence on the part of the injured, and the negligence of the insured is no defense to an action on an accident insurance policy. Nor did the appellant plead the negligence of appellee as a defense.

Lickleider v. Traveling Men's Assn., 166 N.W. 363, 168 N.W. 884, 3 A.L.R. 1295; Bohaker v. Traveler's Ins. Co., 215 Mass. 32, 46 L.R.A. (N.S.)543, 102 N.E. 342; Providence L. Ins. Co. v. Martin, 32 Md. 310; Schneider v. Provident L. Ins. Co., 24 Wis. 28, 1 Am. Rep. 157.

Argued orally by Weston Segura, for appellant.

OPINION

Ethridge, P. J.

Appellee, Mrs. L. T. Randel, brought suit against appellant in which she recovered a judgment for five hundred ten dollars for personal injuries sustained by her in the operation of an automobile. The suit was based upon an indemnity policy the pertinent provisions of which are as follows: "In consideration of the payment of an annual premium of Three Dollars, the Company does hereby insure Mrs. L. T. Randel against certain losses from accident, and promises to pay indemnity as hereinafter limited and provide in the event that she shall suffer loss of life, limbs, sight or time exclusively by reason of a personal bodily injury (suicide or self destruction while either sane or insane, not included), which is effected solely through external violent and purely accidental means, and which also is received while she is the owner of and is actually riding in the automobile (or in any one of the automobiles herein described)," etc.

The declaration alleges that the injuries occurred on June 1 1935, while appellee was the owner of and was...

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