*1 7296] [File No. guardian her Haser, litem, Irvin ad HASER,

ARDENE Respondent, COMPANY, v. MARYLAND CASUALTY corporation, Appellant.

(53 NW2d *2 Opinion 12, rehearing filed March May 27, 1952. On Rittgers, Hjellum Hyland appel- Weiss, & Foster, and for lant. Duffy, respondent.

Sinness & for plaintiff brings this action Morris, Ch. J. to recover the Maryland Casualty Company upon from the $10,000.00 sum insurance an automobile was issued corporation, Company, Yellow a of the Cab the insured behalf pursuant provisions therein, to the of Section 49-1833 námed Company 1943. Yellow Cab common carrier a passengers authority operating for hire under of a certificate necessity by convenience and issued Public Service of North Dakota. Commission of State On October plaintiff, passenger 1947, while a in a taxicab owned and operated by Company by the Yellow Cab and then driven one agent employee Pape, company, Elmer of the cab was by Pape raped Floyd Elmer a Powell, one also Pape, passenger, in the taxicab. Powell, driver, assisted plaintiff. raping regarding in The facts these occurrences fully Pape, are more set out in Haser 77 ND 39 NW2d 578. plaintiff against Pape in an action the Yellow Cab

Company Pape a in the recovered default $10,000.00. sum of In that action the trial court directed a ver- company dict favor of the for Plaintiff a dismissal. appealed and we determined that trial court dismissal prejudicial granted error and we a new trial to the de- company. Pape, supra. fendant cab Haser v. The case jury tried and resulted in verdict the cab plaintiff damages. court, $650.00 favor of the The trial plaintiff, granted set aside the verdict motion The trial court’s order trial. was sustained this a new court Pape, appears ND 240. it in Haser v. Thus yet Company, any, the Yellow Cab if is as undetermined. against Pape present is the basis action

on the automobile issued the defendant in- Company, suring corporation, the Yellow Cab for certain cov- erages period that will be discussed, hereinafter for the April April That issued Company comply require- enable the Yellow Cab with the pertaining granting ments of NDPC 1943 *3 of a certificate the Public State Service Commission. It provides: granting any

“The in commission a certificate to common mo- granting permit any tor in carrier and to contract carrier shall require operator procure the or owner first to either property damage surety approved and insurance aor bond to be sufficiency, surety the form, commission as to the thereof by company and written authorized to write such in insurance designated by this state in amount be to the commission. surety.bond The of such conditions or insurance shall guarantee payment any damage be such toas the of loss or to property, injury persons, the or account of death of or to resulting negligence Upon from the of such carrier. . . . judgment surety directly insurer or become liable shall judgment to the of owner such for the full amount thereof but policy surety exceeding amount of of insurance or applicable bond to such loss.” filing with Service Public Commission of the policy precedent

insurance was a the continuance condition to necessity of the certificate of convenience of the taxi- operate beyond company, without which it could not two city miles from the of 49-1804 NDKC 1943. Jamestown. Section parties light It of will be that in the assumed contracted (Sec- right procured operate statute under it its 896 49-1833

tion NDRC intended make a contract to purposes. carry policy ont its will not be construed to be coverage more restrictive its than the stat- ute. Miller v. Automobile State Insurance Association, 74 Indemnity 621; ND 21 Great American Co. v. Vickers, 183 Ga 24. SE On other hand, may scope coverage requires be broader its of than the statute provide. if the terms of so MacClellan v. General Surety Co., 4 R 926, NJ Mis 911; Atl Franklin Georgia Casualty Ala 702; v. 141 So Witzko Koenig, 224 Wis 864; CJS, NW Insurance, Section 925 c. plaintiff argues judgment Pape con- argument only

clusive as insurer. That if sustainable pro- within the falls policy. vided the terms of either the or the statute requires statute, Section that the insurer payment any guarantee damage property, “the loss or or injury persons, resulting death of or on account of the negligence Pape carrier.” The such any negligence part, not recovered for act of on his but for positive distinguishing- and intentional act violence. A negligence positive characteristic of is the absence of a intent to injury. Negligence, 5 and Jur, CJS, inflict 38 Am Sections 65 Negligence, Negligence, Section Shearman Redfield on Edition, Revised *4 provisions policy turn which now to are broader

We requirements The of statute. is set forth than paragraphs Paragraph B B, in' three and C. deals with A,— damage payments. property with medical Nei- and C importance paragraphs of Para- of is this action. ther these provides bodily injury graph A with deals Maryland Casualty Company agrees with insured: insured pay which the all

“To the insured behalf of sums imposed obligated pay by reason of shall become damages damages, including- for care and upon him law for any including bodily injury, at death of because of services, loss persons, person by any resulting or therefrom, sustained time

897 ownership, of tbe. mainte- out accident and caused the automobile.” or use of nance comprehensive ordinarily is more term accident as used Metropolitan Casualty negligence. Rothman

than the term ALR 1169. 417, NE2d 117 241, 134 Ohio St 16 Insurance Co., Company, named in the Yellow Cab The insured generally corporation. contains a also statement an “omnibus clause” states: known as coverages unqualified “The used word ‘insured’ wherever applicable parts policy, B when A and and in other of this except coverages, and, insured where such specifically includes the named person contrary, any while stated to also includes legally using any person organization the automobile and or responsible provided for the the actual use of the thereof, use permission automobile is with named insured. respect person organization any insurance with other than or apply: the named insured does . . . exceptions per-

Then a, b, c, follow which are without d, tinence to the issues of this case. At the time the assault on place, Pape plaintiff operating took an as automobile belonging a taxicab the Yellow insured, named Cab Com- member, pany. clearly persons desig- He awas of that class of nated as “insured” in the omnibus Persellin v. clause. State 644; Automobile Insurance Association, 75 ND 32 NW2d Dominguez v. American 744; La So2d Traders & General Insurance Powell, Co. v. 177 F2d Blash- Cyclopedia field’s Practice, Automobile Law Permanent Indemnity Edition, Volume Stovall York v. New Co., 157 Tenn 473, 72 ALR 1368, SW2d and annotation Pape, 1375. In Haser v. ND 36, we'determined plaintiff entered the insured cab as Company Pape, company’s Yellow Cab at the instance the cab employee agent. It clear that at that time he us policy, “insured” within the terms of the also his employer, Company. the Yellow Cab question plaintiff, next is whether the under the terms (Section and the statute un-

898 which, upon from the defendant issued, can recover it was der Pape judgment entered Elmer alone. We have Pape the mean- that was “insured” within reached conclusion policy. ing in the It must be determined of that term as now used plaintiff injury whether which the sustained at his hands judgment against him which resulted in the was “caused ownership, accident and out of the maintenance or use policy. plaintiff, automobile” covered while passenger raped policy, by Pape in a taxicab covered another with the willful connivance and as- Pape. Pape sistance of was insured and the taxicab was a ve- policy. hicle covered plaintiff’s suggested injury being that inten

It been has tionally by Pape not with the result of an accident inflicted policy. question meaning in the in the term as used intentionally infrequently personal injury whether a arises may an within inflicted be considered to be the result of accident question meaning liability policy. aof The answer to the depends standpoint on whose is the basis of consideration. standpoint aggressor injury willfully Prom the an in accident; flicted another not an but from that of unprovoked aggression, injury victim of an uninvited right depend upon is accidental. His does not redress Casualty injured Georgia state of mind the one who him. Co. Mills, 853, v. Alden 555, 408; 156 Miss 127 73 ALR So Hartford Indemnity & 151; Accident v. NH Wolbarst, Co. 57 Atl 2d Corporation Century Indemnity Fox Wisconsin Co., 219 Wis Maryland Casualty 567; 263 NW Tedesco v. Co., Conn 533, 18 Atl 2d 132 ALR Pettit Grain Potato Co. Ry. Apple- v. Northern Pacific Minn man’s Insurance Law and Practice, Fidelity

In E. J. Albrecht Co. v. New Co. of App recovery sought Ill York, 508, 7 NE2d under public liability bridge that had been issued contrac to a covering damages bodily injuries tor due- to suffered superintendent result of accidents. The of the construction injured employ shot and one who was not in -the of the’ *6 injured company. judgment against man recovered a the company injury court that the held which was the basis judgment result an accident. Huntington Fidelity Casualty

In v. Cab Co. American Co., injuries 155 F2d taxicab who had sustained as unprovoked by unauthorized, the result of an assault the cab sought to driver .recover under a which was the basis for necessity a certificate of convenience and the Public issued Virginia. Commission of Service West an contained agreement indemnify company: to the cab

“Against liability imposed by upon from the loss law arising resulting or Assured claims the Assured for from persons damages accidentally receiving bodily actual to in- juries . . . .” also carried an endorsement the West

Virginia casualty agreed company pay statute wherein the any judgment against recovered bodily injury resulting negligent operation, mainte- ownership, nance, or use of motor vehicles under the certificate necessity. discussing point convenience and In passenger’s injuries accidentally as whether the were received, the court said: standpoint injured

“The matter is determined from the person standpoint aggressor. and not from If injury is caused employee the insured himself or his with accidental,under authority his or it consent, is not either form policy, and so is denied; but where an intentional injury employee is inflicted an of the insured without the authority generally or latter’s it consent, held, a few decisions contrary, injury is suffered an result' of meaning accident within the of the contract of insurance.” See Casualty also Ohio Ins. Co. v. Welfare Finance 75 F2d 58. Contra see Travelers Insurance v.Co. Reed Co., Texas Civil App., Metropolitan 135 SW2d Casualty 611; Rothman Ins. Co., 134 Ohio St ALR NE2d dealing against

In this case we are not with a an employer injury for an inflicted act of an unauthorized employee, liability arising directly but with a from a willful,

intentional, criminal act of for which insured against perpetrator was rendered generally alone. It is tq contrary public policy held he insure directly wrong. the insured from his willful Goriansky, Sheehan v. 321 Mass 200, 72 NE2d Taxicab Mo- tor Co. v. Pacific Coast Co., 73 Wash 631, 132 Pac 393; Cyclopedia Blashfield’s of Automobile Law Practice, Per- manent Appleman’s Edition, Volume Insurance *7 Law and Practice, Volume Section 4252. general indemnify against

“In insurance to insured his own public against policy; of law void as violation is but insurance indemnify against consequences him to by' the of a violation of law against negligence, negligence

others, or his own or the of others, CJS, Insurance, is valid.” Section 242b. judgment against Pape represents

directly rape by Any from the commission of the insured. con- indemnifying perpetrator consequences against tract the the clearly against public policy. of an act such would be lia- bility policy clearly under consideration does not cannot pay judgment upon bind the insurer to the which this action judgment appealed is based. from is reversed. and Burke, JJ., concur.

Grimson, Christianson, Sathre rehearing. granted petition Morris, C. J. On We on the part respondent rehearing. respondent argues of the for a policy insuring pur- that an insurance a common motor carrier against wrong suant to Section 49-1833 NDB.C 1943 willful is against public policy not void as because the insurance required by protection is law for the of benefit of the who are the real insured, beneficiaries rather than the named Conceding purpose which the common motor carrier. for the of this discussion the correctness rule contended respondent, yet the she nevertheless has not as established a right against appellant to recover under the terms of the policy and the statute. clearly contemplates

Section 49-1833 NDBC against the common motor carrier the insurer

SOI directly judgment up of liable such become owner shall policy. yet of has the amount No been against Company, recovered Yellow Cab is the'com- which carrier mon motor plaintiff’s argument involved this case. If that should occur, may pertinent determining

then become insurer. In this case the is broader in its terms than the statute requires in that it the driver makes of a taxicab an insured. provision governed by This is not nor under it is to deter be respondent, mined not the rule advocated but under general policy indemnifying rule that an insurance in against liability wrong sured due his is void as willful public policy, adopted by a rule which this state has statute in provides: the terms of Section 26-0604 NDRC “An insurer is not liable for a caused the willful act loss negligence the insured, but he exonerated agents insured ofor his or others.” respondent

Under this rule the cannot recover wrong insurer for the willful insured, who in this case is *8 the taxicab driver, not the common motor carrier to whose liability provisions apply.. of Section 49-1833

The correctness of our determination is further demonstrated provision a of the which states: battery “Assault and shall be deemed an accident unless com- mitted or at the direction of the insured.” rape, aggravated which was an form of assault and bat- tery, by or at was not committed the direction of the Yellow Cab Company far and as as the of its insurer is concerned rape although, previously was an accident, have we held, duty part it involved breach of to its of the company. by Pape On the other hand, the act committed pertain- not an accident his was as to insurer because the clause battery ing coverage to assault that excludes act from under precludes liability the term accident and thus insurer upon against Pape based rendered alone. fact the same insurer has insured the cab com- both

pany and the driver under the same does not fix the same security covering A as to each.

measure of statute, but no taxicab such security required statutory driver. His purely liable insurer contractual and the unless recovery sought judgment, which basis is the which contract, insurer, falls terms within judgment against Pape to our former does not. We adhere opinion. JJ., concur. Christianson,

Grimson, Burke, Sathre 7205] [File No. Appellant, v. JORDON, WESTERN

LILLIAN CLAUGHTON Corporation, COMPANY, LIFE INSURANCE STATES Respondent.

(53 NW2d