199 N.E. 765 | NY | 1936
Respondent was injured in an automobile accident by being struck by a car owned by one Joseph H. Bennett. At the time of the accident the owner was seated on the front seat on the right-hand side of his car which was being driven by his son, Bertram Bennett, a boy fourteen years and six months of age. Joseph H. Bennett, the owner, was insured under a liability policy issued by appellant which contained the following clauses:
"This insurance is subject to the following conditions, and failure on the part of the assured to comply therewith or with the provisions of any endorsement attached to this policy shall forfeit the right of the assured or of any judgment creditor of said assured to recover hereunder * * *.
"2. Exceptions. The assured will not * * * permit any * * * motor vehicle [covered hereby] to be operated (a) by any person under the age limit fixed by law or under the age of fourteen in any event, or who for any reason is not permitted by the laws of the State of New York to operate or drive motor vehicles * * *."
Respondent sued Joseph H. Bennett, the owner, and recovered a judgment. The appellant insurance company disclaimed liability under its policy on the ground that the car was being operated by a person under the age fixed by law and did not take part in the defense of the action. An execution on the judgment against Bennett, the owner, having been returned unsatisfied, respondent brought this action to recover of appellant under its policy issued to Bennett. A jury was waived, the facts stipulated, and the trial court rendered a verdict of no cause of action. Respondent appealed to the Appellate Division which reversed by a divided court and judgment was ordered in favor of respondent.
The Appellate Division, in reversing, decided that the appellant, by virtue of section
By section
"The effect of the statute is to give to the injured claimant a cause of action against an insurer for the same relief that would be due to a solvent principal seeking indemnity and reimbursement after the judgment had been satisfied. The cause of action is no less but also it is no greater." (Coleman v. New AmsterdamCasualty Co.,
In Taylor v. United States Casualty Co. (
We have already indirectly passed upon the question here involved and in effect have held the insurer not liable where the terms of the policy excluded liability *480
while the car was being operated by a boy under the age of sixteen years. (Rohan v. Hartford Accident Indemnity Co.,
Section
In the case at bar the coverage was limited by the provision for exclusion from liability while the car was being operated by any person "under the age limit fixed by law." The operator being under such age, the policy did not cover and the insurer did not agree to indemnify the owner against liability for injuries to persons occurring while the car was being operated by such a person, and by issuing a policy containing that clause it did not incur liability to third persons injured while the car was being so operated. By that clause in the policy that risk was excluded from coverage. (Draper v. Oswego County Fire Relief Assn.,
The judgment of the Appellate Division should be reversed and that of the Trial Term affirmed, with costs in this court and in the Appellate Division.
CRANE, Ch. J., LEHMAN, O'BRIEN, LOUGHRAN and FINCH, JJ., concur; CROUCH, J., not sitting.
Judgment accordingly. *481