National Mut. Casualty Co. v. Clark , 193 Miss. 27 ( 1942 )

DISSENTING OPINION. The liability of the insurer, as determined by the majority opinion, is, in my view, too limited. If we consider only the phrase ". . . caused by accident and arising out of the ownership, maintenance or use of the automobile," it is necessary to determine only (1) whether this is an accident within the meaning of the policy arising (2) out of the use of the taxicab.

In Georgia Casualty Company v. Alden Mills, 156 Miss. 853,127 So. 555, 557, 73 A.L.R. 408, it was said "Whether an injury is accidental, is to be determined from the standpoint of the person injured. If the injury comes to him through external force, not of his choice or provocation, then as to him the injury is accidental," and held that one assaulted by insured's employees sustained an "accidental injury" within the meaning of a policy indemnifying employer against loss from claims for injuries accidentally suffered by third persons. See Commercial Casualty Ins. Co. v. Tri-State Transit Co. of Louisiana, Inc., 190 Miss. 560, 1 So. 2d 221, 133 A.L.R. 1510. Therefore, the wrongful assault in the case at bar was an accident as to Clark.

The judgment in favor of Clark and against the Red Top Cab Company, Inc., the insured employer, settled judicially that the injury arose out of the "use of the automobile," and while the employee, the driver of the cab, was acting within the scope of his employment, else the judgment could not have stood. It is not claimed the taxi-driver was the servant of the Cab Company in any capacity other than as such driver. Suppose the driver, because of a dispute over the fare, had wrongfully assaulted the passenger inside the cab before reaching the destination of the passenger, would the policy have covered that liability? The only difference between that case and the one at bar is that in the instant case it was contended the driver was not about his master's business because the assault occurred immediately after the journey's end, but the judgment settled the question against that contention. The driver wrongfully demanded additional taxi fare and assaulted the passenger because he did not pay it. The injury was directly connected with and grew out of the operation of the taxi. Therefore, both requirements of this provision, if standing alone, are satisfied.

But I think that, considering all the provisions of the policy, together with the requirements of the city ordinance, the liability of the insured is broader than the restricted meaning which might reasonably be drawn from the one quoted provision. In addition to that provision of the policy the city ordinance requires that one seeking permission to use the streets of the City of Jackson for a taxicab business shall first file with the city a bond, or insurance policy, . . . conditioned (that such person) . . . will satisfy any and all judgments or decrees rendered against them to any and all persons, firms, or corporations, for personal injury or property damage, caused by the operation of said vehicles, . . ." and to save harmless the city and its agents from judgments, costs and expenses of defending any action which might be brought "growing out of the operation of said taxi-cabs . . ." by the principal or his agents, "and said indemnity is either for the city or any one obtaining judgment as a result of the operation of said vehicles . . . and the terms and conditions herein shall be a condition of the bond the same as though written into the bond and the liability of the principal fixed on the basis of this ordinance whether the same is expressly incorporated in the bond or not."

There is an endorsement on the policy ". . . that coverage in the policy is intended to the herein Named Insured only on automobiles and trucks while being operated by the Insured or his employees and within the scope of the Insured's business."

This policy was required for the protection of the public. In my opinion it was the intention to impose upon the insurer the same legal liability as that of the insured for damage and injury resulting to third persons from the operation of the taxicabs, and that all of these provisions, considered together, do impose that liability. It is common knowledge that doubtful provisions of insurance policies are construed favorably to the insured and against the insurer.

Smith, C.J., concurs in this dissent.