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CAROLYN ROBERTS AND DANA ROBERTS v. WESLEY GRISHAM AND UNITED STATES FIDELITY & GUARANTY COMPANY

APRIL 30, 1986

CAROLYN ROBERTS AND DANA ROBERTS
v.
WESLEY GRISHAM AND UNITED STATES FIDELITY & GUARANTY COMPANY



BEFORE ROY NOBLE LEE, HAWKINS and SULLIVAN

ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:

Carolyn Roberts and Dana Roberts, widow and child, respectively, of Wesley Roberts, deceased, (Roberts) filed suit in the Circuit Court of Clay County against Wesley Grisham and United States Fidelity & Guaranty Company, the uninsured motorist insurance carrier for Wesley Roberts, as a result of his wrongful death. The lower court granted a directed verdict in favor of U. S. F. & G.

The sole question presented on this appeal is whether or not the lower court erred in entering the directed verdict. Appellants contend that there was evidence from which a jury could find that the death of Roberts arose out of the "operation, maintenance or use" of the uninsured (Grisham) vehicle. The lower court, in granting the directed verdict, held to the contrary. The precise question has not previously been decided by this Court.

 The record indicates that Grisham and Roberts had engaged in a dispute concerning work that Grisham had performed for Roberts. On May 19, 1982, Grisham met Roberts along Highway 45 north of West Point and followed him along a gravel road to a point where Roberts parked in front of the Larry Kimbrough home. According to Kimbrough, Grisham got out of his car, walked around and spoke with Roberts on the driver's side of the vehicle. Grisham testified that he stopped his car alongside the Roberts truck and they talked for several minutes; that a tractor approached from the rear and Grisham moved forward to allow the traffic to pass and then backed into his original position. Subsequently, Grisham left his car, walked over to the driver's side of the truck and shot Roberts in the head, inflicting a fatal wound. *fn1

 Appellants contend that Grisham used his uninsured vehicle to block Roberts' truck, preventing his escape, and thereby used the vehicle in causing the death of Roberts. The only proof that Grisham's car was used to block Roberts' escape was the observation by Larry Kimbrough that Grisham's

 car was "nosed in" and that Roberts would have had to back up or go into a ditch to pass the Grisham vehicle. Kimbrough also testified that when Grisham drove up, Kimbrough ". . . just thought he was pulling off the side of the road where people could get around."

 The specific provisions in the uninsured motorist policy covering Roberts' vehicle, issued by U. S. F. & G., under which appellants claim, follow:

 We will pay damages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of:

 (1) Bodily injury sustained by a covered person and caused by an accident; and

 (2) Property damage caused by an accident.

 The owner's or operator's liabilty for these damages must arise out of the ownership, maintenance or use of the uninsured motor vehicle (Emphasis added)

 Both parties contend that Merchants Co. v. Hartford Accident & Indemnity Co., 188 So. 571 (Miss. 1939), supports their respective views as to liability. In Merchants Co., one of its trucks went into a ditch and in order to remove the truck, several large poles were used. The operator of the truck drove away, leaving the poles in the road. An autombile struck one or more of the poles and an occupant was severely injured, for which he recovered judgment against the Merchants Company. The identical coverage provision set forth hereinabove was contained in the policy of insurance issued to Merchants Company, viz,

 To pay on behalf of the Insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages . . . because of bodily injury . . . sustained by any person or persons, caused by accident and arising out of ...


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