McGee v. Globe Indemnity Co. , 173 S.C. 380 ( 1934 )

September 28, 1934. The opinion of the Court was delivered by This action was brought in the County Court for Richland County on a policy of insurance issued to the plaintiff by the defendant, whereby the defendant agreed to indemnify the plaintiff against loss or damage to his automobile, occasioned by accidental means. In the trial, before Judge Whaley and a jury, plaintiff recovered judgment, and defendant appeals therefrom.

In answering the complaint, defendant sought to evade liability by alleging that the policy contained a provision that it should not apply "in respect of any automobile * * * (2) while used or maintained by any person in violation of law as to age or by any person under the age of sixteen (16) years," and that at the time the automobile was damaged, it was being operated by the son of the plaintiff, who was under 16 years of age.

Plaintiff filed a reply to this answer, in which it was alleged: (1) That the defendant had waived the provision of the policy set up in the answer; and (2) "that there existed no causative connection between the age of the driver * * * and the collision referred to herein."

The defendant demurred to the reply, which was overruled by Judge Whaley, and the case was ordered to trial. The same questions raised by the demurrer were also raised during the trial by motion for a nonsuit, and motion for a new trial, and are raised before us by the exceptions.

The trial Judge did not cover the question of waiver in his general charge, and as to that question we agree with the attorneys for the appellant that it is not before us.

In considering the other question, it is admitted that the automobile, at the time of the collision, was being driven by the son of the plaintiff, who was 15 years of age.

The trial Judge based his ruling upon the question involved on the comparatively recent case of Reynolds v. Life Casualty Insurance Co., 166 S.C. 214, 164 S.E., 602. In that case, the action was based on a policy of life insurance which contained a provision that the company would not be liable "if the insured shall die * * * as a result of acts committed by him while in the commission of * * * some act in violation of law," and it appeared that at the time of the death of the insured he was violating an ordinance of the City of Greenville. In disposing of the contention of the company, that the quoted provision under the facts stated relieved it of liability, this Court held that: "In order to defeat recovery under policies excluding or limiting liability where death or injury results from an unlawful act on the part of the insured, there must be shown, in addition to the violation of the law, some causative connection between such act and the death or injury."

Appellant attempts to distinguish the two cases, contending that in the Reynolds case the Court was dealing with a provision limiting liability of the insurance company on account of some act of the insured, while in the present case the provision of the policy relied upon to defeat the recovery, relates to a condition; and it urges that, while it is logical to hold that it is necessary to show some causative connection between the act or acts named in the limiting provision of a policy and the accident involved, a policy which limits liability under a certain condition or conditions absolutely excludes liability under the named condition or conditions, even though the condition or conditions have no causative connection with the accident and resulting damages claimed. Accordingly, the appellant argues that, in the Reynolds case, the insured was violating an ordinance of the City of Greenville at the time of the accident, which was an act excluded from coverage under the policy, and in the present case the driver of the automobile at the time of the accident was under 16 years of age, which was a condition excluded from coverage under the policy, and that the difference between the two is either the basis for liability or exclusion of liability.

In support of its position, appellant cites a large number of cases from other jurisdictions, but we do not understand that it is claimed that any of the cases cited makes such distinction between an excluded act and an excluded condition. Those cases only hold that a provision in a policy of insurance similar to the one in question is binding upon the parties, and the question as to whether or not the "condition" violated had any causative connection with the accident was not raised. Take, for instance, the case of UnitedStates Fidelity Guaranty Company v. Guenther, 281 U.S. 34,50 S.Ct., 165, 74 L.Ed., 683, 72 A.L.R., 1064, strongly relied upon by the appellant, and which it claims this Court is committed to the principle established in that case by its recent case of Chapman v. Metropolitan Life Insurance Company,172 S.C. 250, 173 S.E., 801. An examination of that case shows that the real question presented to the United States Supreme Court was whether or not an age limit prescribed for the drivers of automobiles by an ordinance of a town "fixed" an age limit within the meaning of the phrase, used in a similar provision of a policy, "age limit fixed by law."

The only case that has been called to our attention, which deals with the exact question before us, is the Mississippicase of Hossley v. Union Indemnity Company,137 Miss., 537, 102 So., 561, cited in 72 A.L.R., 1072, note, which applies the principle of the Reynolds case.

We are of the opinion that the distinction advanced between the excluded act and condition is without any logical basis. In the case before us all of the evidence is not reported, and we are considering the question under the assumption that the age of the driver had nothing to do with bringing about the accident, and that the accident would have happened if the most careful and efficient driver of mature age had been operating the automobile at the time of the accident. The rule established by the Reynolds case is obviously founded upon the reasonable view that, when the parties made the contract of insurance, they were not inserting a mere arbitrary provision, but that it was the purpose of the insurance company to relieve itself of liability from accidents caused by the excluded condition. And there is no more reason that the parties to the contract of insurance would arbitrarily exclude liability under a certain condition than they would arbitrarily exclude liability in the commission of a certain act. This case is controlled by the Reynolds case.

Our judgment is that the judgment below be affirmed.

MR. JUSTICES STABLER and CARTER concur.

MR. JUSTICE BONHAM and MR. ACTING ASSOCIATE JUSTICE W.C. COTHRAN concur in result.