138 So. 808 | Miss. | 1932
The appellee filed this suit in the circuit court of Warren county against the appellant, National Casualty Company, seeking to recover one thousand two hundred fifty dollars on an accident insurance policy for the loss of the sight of an eye alleged to have resulted from the wrecking of a public taxicab in which he was riding. At the conclusion of the evidence, the court peremptorily instructed the jury to find for the appellee, and from the judgment entered the insurance company appealed.
The declaration alleged that the appellee received an injury and disability resulting directly, and independent of all other causes, from bodily injuries sustained through external, violent, and accident means, by the wrecking *201 of a public taxicab which was being driven or operated at the time of such wrecking by a licensed driver, plying for public hire, and in which he (the appellee) was traveling as a fare-paying passenger, resulting in the loss of the sight of his left eye.
By subsequent pleadings issue was joined on the following defenses to the suit: First, that the alleged injury to appellee did not result, either directly or indirectly, from the wrecking of the taxicab in which the appellee was a passenger; that his alleged injury did not result, either directly or indirectly, from such a wreck of a taxicab as was and is contemplated by the contract of insurance, and that there was not, in the eyes of the law, or in fact, a wreck of any kind; and second, that if appellee lost an eye on November 12, 1929, as a result of a taxicab wreck, as alleged in the declaration, he wholly neglected and failed to give written notice thereof to the appellant within twenty days from the date of such injury, that it was reasonably possible for him to have given the required notice, but he failed to do so until April 7, 1930, and that his failure to give such notice, in compliance with the insurance contract, forfeited his right under the contract, and precluded a recovery on the policy; and third, that his failure to comply with the terms of the policy, and to give the requisite notice, was a condition precedent to a recovery, and, as no such notice was given for several months after the alleged accident, the appellant was not liable to appellee in any sum, under the terms of the policy.
The policy sued on provides that the company will pay the assured one thousand two hundred fifty dollars for the loss of the sight of either eye as the result of the "wrecking of any public . . . taxicab . . . which is being driven or operated at the time of such wrecking by a licensed driver, plying for public hire, and in which the assured is traveling as a fare-paying passenger." Section 4 of the standard provisions in the *202 policy provides that "written notice of injury on which claim may be based must be given to the company within twenty days after the date of the accident causing such injury;" and section 11 of the general conditions in the policy provides that "strict compliance on the part of the insured with all the provisions of the policy is a condition precedent to recovery hereunder, and any failure in this respect will forfeit to the company all rights to any indemnity."
The proof shows that the appellee took passage in a taxicab to go to his home on Clay street in the city of Vicksburg, and paid his fare; that the taxicab was a large automobile, with a partition between the front and rear seats; that, when the taxicab neared his home, he stood up to reach over this partition for the purpose of attracting the attention of the taxicab driver, and directing him to the location of his home; that the driver turned the taxicab into the curb, but the brakes on it failed to hold, and it ran against the street curb at a rate of speed of about twelve miles per hour, the left wheel of the taxicab running up onto the curb, and that by this impact of the wheel against the curb the left front tire was blown out, and the appellee was violently thrown against the partition between the seats, resulting in the loss of the sight of his left eye. The taxicab driver testified that other than the blowout of the tire there was no damage to the taxicab, but that until the tire was change or repaired he could not move the taxicab from the scene of the accident, without further seriously damaging the rim, tire, and wheel thereof, and that it only cost him seventy-five cents to have the tire repaired.
The provisions of the policy under which recovery is sought provides indemnity for the loss of the sight of an eye resulting from the wrecking of a public taxicab; and the first contention argued by appellant is that under the facts here involved there was no wrecking of the taxicab. *203
Webster's New International Dictionary defines the word "wreck" as meaning "to destroy, disable or seriously damage;" and in ordinary speech an automobile is said to be wrecked when it is disabled or seriously damaged, although it may not be totally destroyed or rendered incapable of use. The wreck of an automobile may mean either a total or partial destruction thereof, and, if it is damaged and disabled, neither the extent of the damage nor the cost of repairs is the sole test in determining whether or not there was a wreck of the automobile, within the contemplation of the partes to a contract of insurance. The blowout of the tire was simultaneous with the collision with the street curbing. The taxicab was thereby disabled so as to require repairs to render it suitable for further use, and, as a result of the crash and blowout of the tire, which constitutes one transaction, the appellee was injured, and we have reached the conclusion that there was a wreck of the taxicab, within the purview of the policy of insurance.
The next contention of appellant is that the terms of the policy were forfeited, as no written notice or other notice was given by the appellee within twenty days from the date of the alleged injury.
The provision of the policy upon which this contention is based is that "written notice on which claim may be based must be given the company within twenty days after date of the accident causing such injury." It is admitted that notice of the injury was not given until several months after the accident, and a decision of the question presented by this contention of counsel involves a consideration of the effect of section 2294, Code of 1930, and the decisions of this court construing it, on this provision of the policy.
Section 2294 of the Code of 1930, which is the same as section 3127 of the Code of 1906, reads as follows: "The limitations prescribed in this chapter shall not be changed in any way whatsoever by contract between *204 parties, and any change in such limitations made by any contract stipulation whatsoever shall be absolutely null and void; the object of this statute being to make the period of limitations for the various causes of action the same for all litigants."
In the case of Dodson v. Western Union Tel. Co.,
At the time the Dodson case, supra, was decided, there was in force section 2575, Code of 1906, providing, among other things, that no insurance company should make any condition or stipulation in its insurance contract limiting the time within which suit might be commenced to less than one year after the loss and injury, and that any such condition or stipulation should be void; and in the case of General Acc., Fire Life Assurance Co. v. Walker,
After the decision of the case last above mentioned, section 2575, Code of 1906, was repealed (Laws 1912, chap. 223), and in the case of Standard Accident Insurance Co. v. Broom,
In support of its contention, the appellant relies principally upon the cases of Employers' Liability Assurance *206
Corp. v. Lumber Co.,
It is further contended that the facts are in conflict as to whether the appellee lost his eye on the occasion in question, and therefore that it was error to grant the peremptory instruction requested by him. On the day following the accident, the appellee consulted a physician, and at the trial the appellant offered this physician, in an effort to show that the loss of sight of appellee's eye was not due to an injury received the night before; but upon proper objection that under any by virtue of section 1536, Code of 1930, this testimony was privileged, the physician was not permitted to testify. The testimony of a physician offered by appellee fully supports the conclusion that the loss of the sight of the eye was the result of the accident in question, and we do not find that this testimony was contradicted. The judgment of the court below will therefore be affirmed.
Affirmed. *208