Hossley v. Union Indemnity Co.

Ethridge, J., delivered the opinion of the court. The appellant was plaintiff below, and brought suit against the appellee for damages to an automobile, al [548] leging that he held a policy numbered 39435 in the defendant company in which the plaintiff was insured against injury by collisions and accidents from other sources, together with assurance for indemnity for bodily injuries, liability for property damages to others, etc. That on the 11th day of January, 1923, while this policy was in full force, and no premium due thereon, the automobile of the insured met with an accident, and was damaged to the extent of one thousand dollars; that under the provisions of said policy the plaintiff made demand on the defendant for the amount of this injury, with proper proof of loss, but the defendant refused to pay it, etc. A copy of the policy was made an exhibit to the declaration.- The defendant pleaded the general issue and a special plea. In the special plea it was alleged that the plaintiff ought not to recover because of paragraph styled “condition A” in the contract sued on, in which paragraph it is provided: “This policy does not cover (1) any obligation assumed by or imposed upon the assured by any Workmen’s Compensation Law or agreement or plan, or (2) while any automobile vehicle is being used for or in any race or speed test, or (3) being driven by any person in violation of law as to age, or if there be no age limit, under the age of sixteen years,” etc. The defendant further alleged that said injury to the motor car bn January 11, 1923, was without the limits of the city of Vicksburg, and in Warren county, Miss., and that the said motor car was then and there being driven by H. H. Hossley, Jr., a minor son of the plaintiff, that said H. H. Hossley, Jr., was then and there under sixteen years of age, and that he was born on the 5th day of March, 1907. This the defendant is ready to verify. To this special plea the plaintiff made two replications : First, that he ought not to be barred from having [549] or maintaining Ms action against the said defendant, because he saith that at the time of the said alleged injury to the said motor car, to-wit, on the 11th day of January, 1923, the fact that the said motor car was then and there being driven by Harry H. Hossley, Jr., had no causative connection with the accident, and, second, that on the 11th day of January) 1923, at the time the motor car was being driven by H. H. Hossley, Jr., (who lacked two months of being sixteen years of age), that the said motor car was not being used or driven by the said Harry H. Hossley, Jr., with the knowledge or consent, expressed or implied, of the plaintiff; but that the said Harry H. Hossley, Jr., was then and there a trespasser, and therefore not within the exception contemplated by paragraph styled “condition A” in the insurance policy. Bach of these replications was demurred to on the ground that neither of the said replications in any way modify or nullify or affect the legal obligations on the part of the plaintiff contained in said paragraph styled “condition A” of the insurance policy as set out in the special plea of the defendant. This demurrer was sustained by the court as to each plea, and the plaintiff declined to plead further, and judgment was entered for the defendant, from which he prosecutes this appeal. In our view the paragraph in the insurance policy, “condition A,” excepted the defendant from liability for injuries resulting from the driving of the car by a person under sixteen years of age where the accident resulted directly or was contributed to proximately, by the fact.that it was being driven by a person.under sixteen years of age, and that the replication that the car was being driven without the consent of the assured presents no defense. The company did not assume to indemnify the plaintiff for injuries proximately resulting from the driving of such car by a driver under the age stated. It never assumed responsibility for accidents due to the fact proximately that the car so driven pro [550] duced. It is perfectly permissible to make any contract of insurance not prohibited by law, and we can understand why an indemnity company would not be willing to assume the risk resulting from cars being driven by persons under' sixteen years of age. 1 Corpus Juris, section 100, p. 442, and authorities there cited; Walker Dry Goods Co. v. Massachusetts Bonding & Insurance Co., 90 W. Va. 122, 110 S. E. 553; American Candy Co. v. Ætna Life Ins. Co., 164 Wis. 266, 159 N. W. 917; Lynch v. Commercial Casualty Co., 93 N. J. Law, 425, 108 A. 188. We are of the opinion, however, that the replication that there was no causal connection between the fact of the car1 being driven and the accident was not subject to demurrer. There must be some causal connection between the accident and the fact that the car was being driven by such person. . We understand there is some conflict in the authorities in other states, but our state, in Baker v. Supreme Lodge Knights of Pythias, 103 Miss. 374, 60 So. 333, Ann. Cas. 1915B, 547, had before it a policy which provided: “If the death of the member ... be caused or superinduced ... in consequence of a duel, or at the hands of justice, or in violation or attempted violation of any criminal law, then the amount to be paid on this certificate shall be a sum only in proportion to the whole amount thereof as the member’s matured life expectancy is to his entire expectancy at the date of this certificate; the expectation of life based upon tha American Experience Table of Mortality to govern.” The facts there were that the deceased was killed under circumstances stated in the opinion, being armed with a concealed weapon and apparently being willing to enter into the fight. The court there held that the matter did not amount to a duel and that there was no causal connection between the carrying of a pistol and the death. See, also, U. S. F. & G. Co. v. Hood, 124 Miss. 548, 87 So. 115, 15 A. L. R. 605; 14 Ruling Case Law, p. 1226, [551] section 407; 1 Corpus Juris, p. 450, section 322; Jordan v. Logia Supt. H. & Am. 23 Ariz. 584, 206 P. 162, 24 A. L. R. 976; Conboy v. Railway Officials’ & Employes’ Accident Association, 17 Ind. App. 62, 46 N. E. 363, 60 Am. St. Rep. 154, and case note beginning at page 360 of 60 Am. St. Rep.; Brock v. Travelers’ Insurance Co., 88 Conn. 308, 91 A. 279; case note to 6 A. L. R. 378; Townsend v. Commercial Travelers’ Mutual Accident Association, 231 N. Y. 148, 131 N. E. 871, 17 A. L. R. 1001. The court below therefore erred in sustaining the demurrer to the first replication to the special plea, for which error the judgment must be reversed and the case remanded. Reversed and remanded.