Opinion
No. 33531.
January 23, 1939. Suggestion of Error Overruled April 3, 1939.
1. INSURANCE.
An injury to a person while performing an act which he intended to do, and which proceeded in manner intended, is not an "injury accidentally suffered" within policy covering liability for accidental injuries, notwithstanding that ultimate injurious result was unexpected.
2. INSURANCE.
Allegations in employee's personal injury action against employer that employee had become afflicted with chronic bronchitis and tuberculosis because he had been constantly subjected to dust-laden air at work did not bring case within coverage of employer's liability policy covering "bodily injuries accidently suffered."
3. INSURANCE.
Although policies are to be construed strongly against insurer, construction must be reasonable, and not a strained or unjust interpretation of the contract.
4. INSURANCE.
An employer's liability policy requiring insurer to defend suits to enforce claims for injuries accidentally suffered did not require insurer to defend employee's suit where none of allegations, if proved, would bring suit within policy, and, therefore, insurer was not liable to insured for expenses incurred in insured's successful defense of suit.
APPEAL from the circuit court of Lauderdale county; HON. ARTHUR G. BUSBY, Judge.
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 Miss. 894.
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 A. 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 YS. 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 Fed. 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 A. 707; 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. 867; 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 appellee.
From January, 1921 to March, 1931, Edward D. Jones was an employe of the Meridian Grain Elevator Company, appellee's assignor. On September 4, 1935, Jones instituted an action at law against his former employer, alleging that the employer had failed to furnish him a reasonably safe place to work throughout the years aforesaid, in that the plant in which he had been required to work was constructed, maintained, and operated in such manner that the employe was constantly subjected to the dust and dust-laden air given off from the feed products which were during said time handled in the elevator plant, with the result that the employe had become so afflicted with chronic bronchitis, and finally with tuberculosis, that he had had to cease work altogether. Further of the facts will be found in the report of that case, Meridian Grain Elevator Co. v. Jones, 176 Miss. 764, 169 So. 771.
In some jurisdictions it would be held that the bodily injury of which Jones complained was one which was accidentally suffered. In this State, however, we are committed to the rule that when one is injured while performing an act which he intended to do, — proceeding throughout the entire course of its performance in the manner intended and without any unpremeditated deflection therefrom, — the fact that the ultimate injurious result was unexpected does not make out a case of an injury accidentally suffered. United States Cas. Co. v. Malone, 126 Miss. 73, 87 So. 896; Metropolitan Life Ins. Co. v. Williams, 180 Miss. 894, 910, 178 So. 477. Compare North American Accident Ins. Co. v. Henderson, 180 Miss. 395, 403, 177 So. 528.
The elevator company held an employer's liability policy with appellant. This policy throughout, and in all its numerous provisions, limited its coverage to insurance against liability for bodily injuries accidentally suffered. The allegations of the declaration filed by Jones did not bring his case within the class of injuries covered by appellant's policy.
When Jones brought his action, the elevator company notified appellant thereof and demanded that appellant defend. Appellant declined to do so, and the elevator company conducted the defense at its own expense, the defense having been successful, as the cited report of the case will disclose. The present action is by appellee, as assignee of the elevator company, to recover of appellant the expenses of that defense.
The provision in the policy upon which appellee relies is as follows: "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, for damages on account of bodily injuries, including death at any time, resulting therefrom, accidentally suffered or alleged to have been suffered by any employe or employes of the assured."
The contention of appellee is that appellant was obligated to defend any suit by an employe for bodily injuries, regardless of whether the injuries were accidentally suffered or not. This argument is bottomed upon the fact that the word "accidentally" is not inserted immediately preceding the word "suffered" where the latter word last occurs in the quoted stipulation. The argument is that the provisions of insurance policies are to be construed strongest against the insurer — a proposition to which this Court is firmly committed by numerous decisions.
Nevertheless, such a construction against the insurer must be a reasonable construction, not a strained or unjust interpretation of the contract. Is it a reasonable or just construction that although the insurer had engaged to indemnify against damages on account of injuries accidentally suffered and for none other, nevertheless it had agreed to defend all suits for bodily injuries whether by accident or not? Since the insurer is interested only in damages accidentally suffered, why should it be said to be interested in the defense of cases wherein there is no allegation of accidental injury? If the insurer is to be so held, should it not be by something more than the device of what at best would be but a doubtful interpretation? We are of the opinion that a fair and just construction of the quoted provision, when taken with the numerous other provisions of the policy, all pointing to injuries accidentally suffered, did not require the insurer to defend the said Jones case wherein there was no allegation which, if proved, would bring this action within the coverage of the policy, and that appellant was entitled to the peremptory charge requested by it. Compare United States Fidelity Guaranty Co. v. Yazoo Cooperage Co., 157 Miss. 27, 127 So. 579; United States Fidelity Guaranty Co. v. Cook, Miss., 179 So. 551.
Reversed and judgment here for appellant.