ny damages sustained by the plaintiffs would be under the theory of product liability coverage with the defendant, Fernandez, Inc., on the theory that the child, Elva Dean Triplett, who went to the premises of Fernandez, Inc., to purchase, under the directions of her father, Willie Triplett, did not receive the product which she told the employee of Fernandez, Inc., she wanted, and that any liability of the insurer, Great American Indemnity Company, would have to be based on a product liability coverage, which coverage is absent from the insurance policy in force at that time, and which policy is attached to the traverse of the plaintiff, appellee herein. II. Appellant contends that its liability in this case, if any, has to be grounded in the accident clause of the policy, and the alleged filling of the container of Elva Dean Triplett with gasoline instead of kerosene did not constitute an accident under the terms of the existing insurance policy of the appellant with the defendant, Fernandez, Inc. Womack v. Employers Mutual Liability Ins. Co., 233 Miss. 110, 101 So.2d 107; 29A Am. Jur., Secs. 1166, 1167 pp. 312, 315; 1 Words and Phrases (perm. ed.), pp. 293, 294, 297. Cumbest Cumbest, Pascagoula, for appellees.
Albuquerque Gravel Products v. American Employers Insurance Co., 282 F.2d 218, 220 (C.A.10, 1960); Lee v. Aetna Casualty Surety Co., 178 F.2d 750 (C.A.2, 1949); Duval v. Aetna Casualty Surety Co., 304 Mich. 397, 401, 402, 8 N.W.2d 112. In Womack v. Employers Mutual Liability Insurance Co., 233 Miss. 110, 101 So.2d 107, a garageman sought to recover from his insurer the cost of defending a suit brought against him by a vehicle owner for defective workmanship in repairing such motor vehicle. The damages sought were for the vehicle owner's cost of repairs made necessary by such defective workmanship.
Also, the same other voice advises that there are situations where "[t]he declaration may fail to state a good case, and yet the insurer be obligated to defend, if the suit `respects the insurance afforded by the terms of the policy.'" Womack v. Employers Mutual Liability Insurance Company of Wisconsin, 233 Miss. 110, 101 So.2d 107, 110 (1958). Carrom latches onto the allegations of the complaint by emphasizing
Cited to support this view are Hardware Mutual Casualty Co. v. Gerrits, Fla., 65 So.2d 69; Bennett v. Fidelity C. Co. of N Y, Fla.App., 132 So.2d 788, 791; Mauney v. Gulf Refining Co., 193 Miss. 421, 8 So.2d 249, 9 So.2d 780; Thomason v. United States FG Co. (5 Cir. 1957), 248 F.2d 417; Neale Construction Co. v. United States FG Co. (10 Cir. 1952), 199 F.2d 591; Womack v. Employers Mutual Liability Insurance Co. of Wisconsin, 233 Miss. 110, 101 So.2d 107. Cf. Great American Insurance Co. v. Triplett, Miss., 139 So.2d 357.
Harmon W. Broom, Jackson, for appellee. I. Cited and discussed the following authorities: Fernandez, Inc. v. Tri-State Transit Co., 190 Miss. 560, 1 So.2d 221; Georgia Casualty Co. v. Alden Mills, 156 Miss. 853, 127 So. 555, 73 A.L.R. 408; Great American Insurance Co. v. Triplett, 243 Miss. 815, 139 So.2d 357; Womack v. Employers Mutual Liability Insurance Co., 233 Miss. 110, 101 So.2d 107; Young v. Railway Mail Assn., 126 Mo. App. 325, 103 S.W. 557; Anno. 93 A.L.R. 2d 1059; 1 Words and Phrases (Perm. Ed.), words "an accident" 293. SMITH, J.
I. Appellant's claim was not within the coverage of appellee's policy. Cauthen v. National Bankers Life Ins. Co., 228 Miss. 411, 88 So.2d 103; Goldstein v. Standard Acc. Ins. Co., 236 N.Y. 178, 140 N.E. 235; Griffin v. Maryland Cas. Co., 213 Miss. 624, 57 So.2d 486; Hardwood Mutual Cas. Co. v. Mason-Moore, Tracy, Inc., 194 F.2d 173; Hooley Sons v. Zurich General Acc. Liability Ins. Co., 235 La. 289, 103 So.2d 449; Lavender v. Volunteer State Life Ins. Co., 171 Miss. 169, 157 So. 101; Maryland Cas. Co. v. Holmsgaard, 10 Ill. App.2d 1, 133 N.E.2d 910; Mississippi Mutual Ins. Co. v. Ingram, 34 Miss. 215; New Amsterdam Cas. Co. v. Perryman, 162 Miss. 864, 140 So. 342; Travelers Fire Ins. Co. v. Price, 169 Miss. 531, 152 So. 889; Womack v. Employers Mutual Liability Ins. Co. of Wisconsin, 233 Miss. 110, 101 So.2d 107. II. The trial court correctly excluded the testimony of Dr. M.C. White.
II. The plaintiff wholly failed to prove by a preponderance of the evidence that the death was accidental. Scales v. Home Life Ins. Co., 89 F.2d 580; Womack v. Employers Mut. Liability Ins. Co. of Wis., 233 Miss. 110, 101 So.2d 107; North American Acc. Ins. Co. v. Henderson, 180 Miss. 395, 177 So. 528; Occidental Life Ins. Co. of California v. Barnes, supra; Fidelity Cas. Co. of N.Y. v. Stacey, supra; Meister v. General Acc., Fire Life Ins. Corp., supra; Scarborough v. World Ins. Co., supra; Hutton v. States Acc. Ins. Co., supra; Georgia Cas. Co. v. Alden Mills, 156 Miss. 853, 127 So. 555, 73 A.L.R. 408; Podesta v. Metropolitan Life Ins. Co. (Mo.), 150 S.W.2d 596; Eicks v. Fidelity Cas. Co., 300 Mo. 279, 253 S.W. 1029; Phelan v. Travelers Ins. Co., 38 Mo. App. 640; Collins v. Fidelity Cas. Co., 63 Mo. App. 253; 45 C.J.S., Sec. 753 p. 777. III. A contributing cause to the death of the insured was an attempt on his part to commit a felony, and his death was not accidental within the meaning of the policy.
Employers Casualty Company v. Brown-McKee, Inc., 430 S.W.2d 21 (Tex.Civ.App. Tyler 1968, writ ref'd n. r. e.); Bundy Tubing Company v. Royal Indemnity Company, 298 F.2d 151 (6th Cir. 1962); Hauenstein v. St. Paul-Mercury Indemnity Company, 242 Minn. 354, 65 N.W.2d 122 (S.Ct. 1954). Although the allegedly defective Performance of the work itself might or might not be considered an accident (see Womack v. Employers Mutual Liability Ins. Co. of Wisconsin, 233 Miss. 110, 101 So.2d 107 (S.Ct. 1958)), yet the destruction of the entire engine as a result of the malfunction of one of the repaired valves was certainly unexpected and unintended, and constituted an accident within the meaning of the policy provisions. Second, Travelers urges that coverage was specifically denied by the policy exclusions.
which has been held not to cover an accident which happened away from and unconnected with the premises described, even though caused by defective parts furnished for, or inefficient workmanship on, an automobile. Workman v. Republic Mutual Ins. Co., 144 Ohio St. 37, 56 N.E.2d 190; Womack v. Employers Mutual Liability Ins. Co. of Wis., La.App., 101 So.2d 107; Standard Acc. Ins. Co. v. Theo Money Chevrolet Co., 217 Ark. 869, 233 S.W.2d 553. The issue is res nova in our jurisprudence; hence we adopt the interpretation of this exclusion as made in the cases cited supra.
which has been held not to cover an accident which happened away from and unconnected with the premises described, even though caused by defective parts furnished for, or inefficient workmanship on, an automobile. Workman v. Republic Mutual Ins. Co., 144 Ohio St. 37, 56 N.E.2d 190; Womack v. Employers Mutual Liability Ins. Co. of Wis., La.App., 101 So.2d 107; Standard Acc. Ins. Co. v. Theo Money Chevrolet Co., 217 Ark. 869, 233 S.W.2d 553. The issue is res nova in our jurisprudence; hence we adopt the interpretation of this exclusion as made in the cases cited supra.