United States Fidelity & Guaranty Co. v. Wilson

• Decision Date: 23 January 1939
• Docket Number: 33531
• Citation: 184 Miss. 823,185 So. 802
• Parties: UNITED STATES FIDELITY & GUARANTY Co. v. WILSON
• Court: Mississippi Supreme Court

185 So. 802

184 Miss. 823

UNITED STATES FIDELITY & GUARANTY Co. v. WILSON

No. 33531

Supreme Court of Mississippi, Division A

January 23, 1939

Suggestion Of Error Overruled April 3, 1939.

APPEAL from the circuit court of Lauderdale county HON. ARTHUR G BUSBY, Judge.

Action by J. M. Wilson against the United States Fidelity & Guaranty Company to recover the cost of defending a suit which had been brought against the holder of an employer's liability policy, and which the defendant had declined to defend. From an adverse judgment, the defendant appeals. Reversed and rendered.

Reversed and judgment here for appellant.

Bozeman Cameron & Bozeman, of Meridian, for appellant.

The insuring clauses themselves limit the promise of the insurance company alone to "damages on account of bodily injuries . . . accidentally suffered, or alleged to have been suffered." This same limitation runs through all of the clauses of the contract which have any reference to the fundamental liability of the insurance company. This is not therefore, a general or unlimited policy providing indemnity against "bodily injuries" however received, but a limited policy insuring against bodily injuries only which have been "accidentally suffered, or alleged to have been suffered."

Voluntary cannot be accidental. Mississippi has a well defined rule on the subject. The rule is that what a man voluntarily does, or intends to do, cannot be accidental.

U. S. Cas. Co. v. Malone, 126 Miss. 73, 87 So. 896; Metropolitan Life Ins. Co. v. Williams, 178 So. 477, 180

Jones was subjected to the dust which caused his trouble, voluntarily. True it irked him and he complained about it, but he "willed" to continue work, despite this handicap. It will be recalled, also, that he was not lulled into feeling that the situation would be changed. Every time he complained he was advised, categorically, that nothing would be done to improve conditions.

Every morning when he went to work he knew that he would be faced with dust. All during the day he could see the dust, and it caused him to cough and spit blood. He did not quit his job and go away. It was his will to go on and work, despite the dust. He intended, therefore, to stay where he had to breathe the dust over this ten-year period. It was not by accident, therefore, that he breathed the dust. He expected to breathe it. He knew he was going to have to breathe it. There was no way he could get out of breathing it. He voluntarily stayed on and worked in the dust, and by no stretch of the imagination can it be argued that the breathing of the dust was an accident. That is something unexpected and unforeseen and unintended.

A good many courts (as will be illustrated doubtless by a number of cases cited by our adversaries) hold to the view that a thing may be accidental when viewed from the standpoint of results alone, even though the act which produced these results was intentional. In the Williams case, the court declared that the Mississippi Court is not aligned with those which held to such a view.

While these Mississippi cases would seem to dispose of the entire case, it will not be amiss to go ahead with mention of a few authorities from other states which seem to be directly in point.

U. S. Radium Corp. v. Globe Ind. Co., 13 N.J. Misc. 316, 178 A. 271, 116 N.J.L. 90, 182 Afl. 626; Taylor Dredging Co. v. Travelers' Ins. Co., 90 F.2d 449; Belleville, etc., Co. v. U.S. Cas. Co., 266 Ill.App. 586; Utica Mut. Ins. Co. v. Hamera, N.Y.S. 811; Jackson v. Employers' Lia. Corp., 248 N.Y.S. 207, 254 N.Y.S. 1010, 182 N.E. 180, 259 N.Y. 559; Victory Sparkler v. Franks, 128 A. 635; McGuire v. Sherwin Williams Co., 87 F.2d 112; Landress v. Phoenix, 291 U.S. 491, 78 L.Ed. 934, 90 A.L.R. 1382; Aetna v. Portland, 229 F. 552, L.R.A. 1916D 1027; Peru Plow, etc., Co. v. Industrial Com., 142 N.E. 546.; Depre v. Pacific Coast Co., 259 P. 720; Iwanicki v. Industrial Com., 205 P. 990; Mauchline v. State Ins. Fund, 124 A. 168; Industrial Com. v. Brown, 110 N.E. 744; Miller v. Amc. Steel & Wire Co., 97 A. 345; Adams v. Acme White Lead, 148 N.W. 485.

Wilbourn, Miller & Wilbourn, of Meridian, for appellee.

It is respectfully submitted that the judgment of the lower court should be affirmed. We do not think it will be contended that the suit of Edward D. Jones v. Meridian Grain & Elevator Co. was not one for damages on account of bodily injuries. That it was such a suit, it seems to us, is settled by the following authorities:

Meridian Grain & Elevator Co. v. E. D. Jones, 169 So. 771, 176. Miss. 764; Oscar Heineman v. Standard Surety & Casualty Co. of New York, 289 Ill.App. 358, 7 N.E.2d 389.

The term "personal injuries" is often used in the sense of bodily injuries. Clearly bodily injuries are the same as personal injuries.

In the case of Beehler Steel Products Co. v. American Mutual Liability Ins. Co., 108 S.W.2d 985, the policy there involved insured against "the liability imposed by law for damages on account of personal injuries." In construing the language aforesaid, the court remarked: "The term 'personal injury, ' where, as here, it is used in the sense of 'bodily injury, ' may cover any harmful effect upon the body, whether by violence or by disease."

U. S. F. & G. Co. v. Yazoo Cooperage Co., 127 So. 579; 157 Miss. 27; Fire Ins. Co. v. Hand-Jordan Co., 112 Miss. 565, 73 So. 578; South Knoxville Buick Co. v. Empire State Co., 150 S.W. 92.

Under the rule of construction applicable, we submit that appellant obligated itself by Clause "II, "--punctuating it as the Supreme Court of Mississippi did in U.S. F. & G. Co. v. Yazoo Cooperage Company, supra-- to defend any suit brought against the assured to enforce a claim, whether groundless or not, for damages on account of bodily injuries, etc., alleged to have been suffered by any employee or employees of the assured. If this is the correct interpretation of the meaning of the policy, and if the decision in U.S. F. & G. Co. v. Yazoo Cooperage Company is followed in disposing of the instant case, then it is wholly immaterial as to whether or not the declaration showed on its face that the bodily injuries for which suit was brought had been accidentally suffered.

It is a cardinal principle of insurance law that a policy of contract of insurance is to be construed liberally in favor of insured and strictly as against the company. Stated more fully, the rule if that, where, by reason of ambiguity of the language employed in a policy or contract of insurance, there is doubt or uncertainty as to its meaning, and it is fairly susceptible of two interpretations, one favorable to insured and the other favorable to the company, the former will be adopted.

32 C. J. 1152; Greer-Robbins Co. v. Pacific Surety Co., 174 P. 110; Longwell Lbr. & Bldg. Co. v. Maryland Cas. Co., 259 N.Y.S. 7.

In the Meridian Grain & Elevator v. Jones case, the thing that the said E. D. Jones claimed caused him to give up his work happened within the life of the policy here sued on, according to his claim; and also happened as a result of the conditions of his employment. Such a suit, even though groundless, was one that appellant had agreed to defend, and we submit the injuries were accidentally suffered within the meaning of the policy.

Plecity v. Geo. McLachlan Hat Co., 116 Conn. 216, 164 Afl. 797; Georgia Cas. Co. v. Alden Mills, 127 So. 555, 156 Miss. 853; Fidelity Co. v. Johnson, 72 Miss. 333, 17 So. 2, 30 L.R.A. 206; Stephens v. Ry. Co., 75 Miss. 84, 20 So. 710; Hutson v. Continental Cas. Co., 142 Miss. 388, 107 So. 520; Holmes v. American, etc., Ins. Co., 142 Miss. 636, 107 So. 86, 7; Provident, etc., Co. v. McWilliams, 146. Miss. 298, 112 So. 483; Great Southern etc. v. Campbell, 148 Miss. 173, 114 So. 262; 56 A.L.R. 681; 14 R. C. L. 1255; Beehler Steel Products Co. v. American Mutual Liability Ins. Co., 108 S.W.2d 985; U.S. F. & G. v. Cook, 179 So. 551; Bloom-Rosenblum-Klein Co. v. Union Indemnity Co, 121 Ohio St. 220, 167 N.E. 884; Updike Investment Co. v. Employers Liability Ins. Corp., 270 N.W. --.

The injuries claimed by Jones, in his suit against Meridian Grain & Elevator Company were not voluntarily or intentionally sustained by him.

Victory Sparkler Co. v. Franks, 128 A. 635; Plecity v. McLachlan, 164 A. 707.

Argued orally by Ben F. Cameron, for appellant, and by R. E Wilbourn, for ...