136 Misc. 740 | N.Y. Sup. Ct. | 1930
Plaintiff was injured as the result of an accident in the operation of an automobile owned by Emma Stone and Herbert S. Spitz. At the time the car was being operated by a person by the name of Murray, who may have been employed by the owners thereof. Defendant issued and delivered a policy of casualty insurance wherein it indemnified Stone and Spitz against loss from liability for damages as a result of the ownership, maintenance, control and use of this automobile on account of bodily injuries suffered by third persons. ■ An action was brought by plaintiff against the owners of the automobile wherein it was claimed that the accident was caused through the negligence of the owners or their agents, servants or employees. Such action came to trial and resulted in a verdict in favor of defendants. Judgment was entered in favor of said defendants, and from this judgment no appeal was taken. Subsequently an action was brought by this plaintiff against Murray, which resulted in a verdict against him
In the defense it is not claimed that Murray was named as a party in the former action in which merely the owners of the automobile were concerned. At the time of the accident it was the law in this State that a master was not liable for the injuries caused by an automobile unless it appeared that the automobile was at the time being operated for his business or on his behalf or by and with his direct permission. On the trial of the action against the owners it was urged that at the particular time of the accident the operator Murray was not engaged in the business of the master; and it is quite apparent, therefore, that such contention was believed by the jury as evidenced by the verdict in favor of the defendants. I cannot see that it is the law of the State under the terms of the policy, the subject-matter of this action, that the defendant can escape liability to the amount of its indemnification. There seems to be nothing in this State by law or precedent which has determined the direct question here involved. The “ omnibus coverage clause ” referred to, in my opinion, covered the liability of the operator of the car as an unnamed assured. If this construction be correct,
Another case worthy of note is that of Whitney v. Employers' Indemnity Corporation (200 Iowa, 25; 202 N. W. 236). In that case there was involved not only the consideration of the “ omnibus coverage clause ” but strange to say an apparent similar adjudication to that here presented. There, a third person sued a casualty company after the return of an execution unsatisfied on a judgment that the plaintiff had procured against an unnamed assured or beneficiary of the insurance who had been sued along with the named assured under the policy, on the theory that the operator of the car was as much covered by the policy as if he had been actually named as an assured. The policy contained a provision somewhat similar to the one in the instant case, as follows: “ while the automobile covered by this policy is being used with the express or implied consent of the assured named in the policy * * * it is agreed that any insurance granted by this policy shall, in addition to the said named assured, inure to the benefit of any person responsible for the operation of the said automobile.”
In construing such clause the court said: “ While the Ford roadster covered by this policy is being used with the express or implied consent of the Moore Grocery Company, it is agreed that any insurance granted by this policy, shall, in addition to the said Moore Grocery Company inure to the benefit of Fenlon. By thus filling in the names of the parties, it will be seen that, if the grocery company consented either expressly or impliedly to Fenlon’s operation of this car, then the policy would inure to the benefit of Fenlon.”
It seems to me, therefore, that the clause relied upon by plaintiff to recover against this defendant inured to the benefit of Murray, the unnamed operator of the car, with as much force and effect as if he had been named in the policy. Considering the magnitude
For the reasons above expressed plaintiff’s motion to strike out the first and separate affirmative defense is granted, with ten dollars costs. Order signed.