We held in
Willis v. Fidelity & Casualty Co. of N. Y.,
253 S. C. 91,
The question now presented in this case is whether an exclusionary clause such as was involved in Willis, may be made applicable to the uninsured motorist provisions of an automobile liability insurance policy, so as to legally exclude uninsured motorist coverage to insured while occupying an uninsured automobile owned by the named insured or a member of the sаme household.
Appellant, Home Insurance Company, issued a policy of automobile liability insurance to, Lila S. Hogan, as the named insured, with an uninsured motoyist endorsement. The vehicle described in the policy was a 1962 Ford automobile. Roger E. Hogan, a son, and Steve Meroney, a nephew , of Lila S. Hоgan, both 18 years of age resided in the household with Mrs. Hogan, the name insured.
On August 1, 1967 Roger E. Hogan was killed in a single car accident, while riding as a passenger in an uninsured 1967 Ford automobile, the title to which was in the name of Lila S. Hogan but actually owned by Steve Meroney who had made all of the purchase payments and exercised exclusive control over the vehicle.
As the result of an action for the wrongful death of Roger E. Hogan, judgment in the amount of $9,524.00 was enterеd against the estate of Steve Meroney who was also killed in the accident. Thereafter, respondent instituted this action to recover the judgment from appellant under the uninsured motorist provisions of the policy issued to Lila S. Hogan. Respondent asserted liability against appellant upon the ground that appellant’s policy issued to Lila S. Hogan provided uninsured motorist coverage to respondent as a resident member of the named insured’s household. Appel *160 lant denied liability, relying upon the following exclusionary clause in the uninsured motorist endorsement ojl the policy:
This endorsement does not apply:
(b) to bodily injury to an uninsured while оccupying an automobile (other than an insured automobile) owned by the named insured o,r any relative resident in the same household.
It is conceded thаt, but for the quoted provision, the policy in question afforded uninsured motorist coverage to, respondent.
The lower court entered judgment against appellant, holding that the foregoing exclusionary clause was in conflict with the statutory provisions requiring the uninsured motorist endorsement and, therefore, ineffеctive to deprive respondent of uninsured motorist coverage. This appeal is from the judgment so entered.
The question then to be decided is whethеr the quoted clause is in conflict with the statutory provisions governing uninsured mo.torist coverage. If the provision excluding coverage is in conflict with the requirеments of the statute, of course, the statute controls the rights of the parties.
Every automobile liability insurance policy issued in this State must contain an uninsured mоtorist endorsement providing uninsured motorist coverage to the insured in addition to the liability insurance contract. The requirement and the extent of the obligаtion is set forth in Section 46- 750.33 of the Code Supplement as follows:
“No such pojicy or contract shall be issued or delivered unless it contains a provision by endorsement or otherwise, herein referred to as the uninsured motorist provision, undertaking to pay the insured all sums which he shall be legally entitled to recоver as damages from the owner or operator of an uninsured motor vehicle, within limits which shall be no less than the requirements of Section 46-750.32.”
*161 The term “insured,” under both liability and uninsured motorist coverage is defined in Section 46-750.31 (2) Code Supplement:
“(2) The term ‘insured’ means the named insured and, while resident of the same household, the spouse of any such named insured and relatives of either, while in a motor vehicle or otherwise, and any person who uses with the consent, expressed or implied, of the named insured, the motor vehicle to which the policy applies and a guest in such motor vehicle to which the policy apрlies or the personal representative of any of the above.”
The language of Section 46-750.31(2) is plain and unambiguous. As pointed out in
Davidson v. Eastern Fire & Casualty Insurance
Co., 245 S. C. 472,
Again, in Willis, supra, in discussing the nature and extent o,f the uninsured motоrist coverage under the statute, we stated:
“This definition of ‘insured,’ which had formerly been applicable only to uninsured motorist coyerage (Sec. 46-750.11(2), Code of (1962), was made applicable to liability coverage by Act No. 312 of 1963 ... In the original formulation of this definition, the use of the words ‘while in a motor vehicle or otherwise’ was appropriate, although probably unnecessary, to emphasize the legislative intention that the named insured, his spouse and his or hеr relatives residing in the same household should have the benefit of uninsured motorist coverage at all times, as distinguished from per *162 missive users or guests who should be cоvered only when occupying the insured automobile . . . This obligation of the insurer is to pay all sums which the insured shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle. It arises without regard to, the activity in which the insured was engaged when injured by the negligence оf an uninsured motorist, whether as a motorist, pedestrian, laborer or otherwise. This results from the nature of the insurer’s obligation with respect to uninsured motorist coverage, rather than from the use of the words ‘or otherwise’ in the definition of the term insured.”
Willis clearly points to the distinction between liability and uninsured motorist coverage. The liability contract is only required to insure “the pеrsons defined as insured, against loss from the liability imposed by law for damages arising out of the ownership, maintenance or use of” the motor vehicle desсribed in the policy; while uninsured motorist coverage obligates the insurer to pay all sums which the insured “shall be legally entitled to recover as damages frоm the owner or operator of an uninsured moto,r vehicle.” Uninsured motorist coverage is not to provide coverage for the uninsured vehicle but to afford additional protection to an insured. Unlike the pro,visions relative to liability coverage, the statute plainly affords uninsured motorist coverage to the named insured and resident relatives of his or her household at all times and without regard to the activity in which they were engaged at the time. Such coverage is nowhere limited in the statute to the use of the insured vehicle, and cannot be so limited by the policy provisions.
The present policy prо,vision which excludes resident relatives of the named insured from uninsured motorist coverage except when occupying the vehicle described in the policy is clearly a limitation upon the broad co.verage required by the statute and is, therefore, void.
The judgment is accordingly affirmed.