Fireman's Fund Ins. Co. v. Haley

92 So. 635 | Miss. | 1922

Sykes, J.,

delivered the opinion of the court.

The appellee sued and recovered a judgment against the .appellant insurance company for one thousand dollars and interest from April 15, 1918, at six per cent., making the total amount of the judgment one thousand, one hundred and ninety dollars from which judgment this appeal is here prosecuted. The insurance policy in this case, among other things, “covers sums which the assured shall become liable to pay for damage to property through collision of the automobile herein described with any other automobile. . . . This company shall not in any event be liable under this provision for more than the actual value of the property destroyed . or for a greater sum than one thousand ($1,-000) dollars ... on account of any collision.” The policy also provides how proof of loss shall be made out, and then provides “and the sum for which this company is liable, pursuant to this policy, shall be payable, sixty days after the notice.”

The declaration charges and the testimony shows that on April 15,1918, while appellee was driving on a country road at a rate of speed testified to by him and his witnesses to be about twenty-five miles an hour and estimated by some others as exceeding this limit, either as he was starting over or just before reaching a bridge, his car collided with the car of Mr. Heathman, practically destroying the Heathman car; that immediately thereafter he gave the proper notice in accordance with this policy to the insurance company of the collision; that some time thereafter Mr. Heathman sued him for five thousand dollars actual and punitory damages and recovered a judgment against him for one • thousand dollars; that in the trial of this case his attorney was assisted in the defense by the attorney of the insurance company. There were various and sundry special pleas filed to this declaration by the insurance company which it is unnecessary to set out in detail. The statutes of this state made it unlawful to exceed thirty miles an hour upon a country road (section 5775, Hemingway’s Code), and to go upon or approach a bridge at a rate exceeding ten miles an hour.. In this case the court instructed the jury on behalf of the defendant that, if the defendant was exceeding the speed of thirty miles an hour, they must find for the defendant, but declined to instruct the jury that, if he was approaching the bridge at a rate of speed of over ten miles an hour, they should find for the defendant. We think the instructions for the defendant were more liberal than it was entitled to under the law. Even if the plaintiff were exceeding either the thirty or the ten-mile speed statute in this case, and thereby violating both of these statutes, this would not prevent him from recovering upon this policy. There is no provision in the policy providing for non-liability in case at the time of an accident the insured is violating the speed laws of the state. It is “hornbook” law that these insurance policies which are prepared by the insurance companies are to be most strongly construed against them and in favor of the assured, and, where there is no provision in them exempting it from liability, the mere fact that these statutes may have been violated’ is no defense.

There is no contention in this case that the appellee deliberately ran into the car of Mr. Heathman.

There is nothing in the terms of the policy contrary to or violative of anj^ public policy of the' state. It is a perfectly valid contract of insurance and does not exempt the company from liability for a violation of the speed laws. It is a contract of absolute liability in cases of collision. The compauy sets up as a defense an independent collateral matter, viz. the violation of the speed law. Upon this question we think the case of Messersmith v. American Fidelity Co., 187 App. Div. 35, 175 N. Y. Supp. 169, announces the correct principle of law. In that case the insured was violating the law by having an infant drive his car at the time of the collision. The court, in holding the company liable, in part said:

“Hero the contract on its face is perfectly legal. It does not purport to indemnify the plaintiff against damages growing out of the performance of an illegal act. . . . The plaintiff in this case, to make out his cause of action, was not required to prove any unlawful act. In fact, all of the material allegations of the complaint are admitted, and the defendant seeks to escape the liability which the policy places upon it by an independent, affirmative defense to the effect that at the time of the accident the automobile was being driven by a boy under eighteen years of age in violation of law.

“ ‘An obligation will be enforced, though indirectly connected with an illegal transaction, if it is supported by an independent consideration, so that the plaintiff does not require the aid of the illegal transaction to make out his case.’ .

“It seems to me that there is an attempt in this case to connect distinct and independent transactions, and to inject into the insurance contract, which was fair and legal in itself, the illegal feature of the other independent transaction.

“The independent legal contract of insurance, founded upon a good and valid consideration, was not made void by an incidental violation of the Highway Law. The violation of the statute was an entirely distinct and disconnected act. The issuing of the policy and the violation of the Highway Law were in no way connected. The issuing of the policy did not lead to the violation of the Highway Law in any way, it was not intended to aid or encourage such violation of the law.

If such a defense were permissible in this state, automobile insurance would be practically valueless.

It is also contended by the appellants that the-court ,should not have permitted the introduction of the judgment in the Heathman case. This policy, however, expressly covers “damages which the insured shall become' liable to pay. . . . ” This Heathman judgment was for damages which the appellee became liable to pay by virtue of the judgment. We know no bettej way to prove a liability than by introducing the judgment showing it.

It was also contended that the suit was' for actual and punitory damages, and that it cannot be said that the judgment for one thousand dollars was only for the actual damages. Upon this question, however, it will be borne in mind that the amount sued for was five thousand dollars, the amount of the recovery was one thousand dollars and the uncontradicted testimony showed that the Heathman car was a total wreck, was practically a new car, having been driven only from two thousand to three thousand miles, costing originally one thousand, five hundred dollars, There was no testimony whatever controverting this proposition. Consequently the jury were inescapably driven to the conclusion that the one thousand dollars was only for actual damages. It was error, however, in this case to allow interest from the date of the collision. As will be noted from the terms of the policy above set out, the insurance company is allowed sixty days after-the proof of loss within which to pay this claim. The collision occurred at night. The testimony shows that notice was immediately given the company. We conclude from this that notice was given the next day, April 16, 1938. The company then had sixty days, or to June 16, 1918, to pay this one thousand dollars. It was not in default until the expiration of the sixty days, and therefore is not liable for interest before June 16,1918. In other words, the judgment of the lower court is excessive to the amount of two months’ interest on one thousand dollars at six per cent, per annum, which amounts to ten dollars. Which judgment will be corrected in this court.

Affirmed, with remittitur.