7 A.2d 383 | Conn. | 1939
The plaintiff sought recovery against the defendant of the amount of a judgment obtained against Wallace Lewis for injuries suffered by reason of the operation of an automobile owned by Martin J. O'Meara, but at the time being driven by Lewis, one of his automobile salesmen. The action was based upon a policy of insurance issued by the defendant to O'Meara doing business as O'Meara Motor Sales. The plaintiff did not allege or claim to have proved that O'Meara was under any legal liability to him by reason of the injury which he suffered, and admitted upon the pleadings that in an action brought by him against O'Meara and Lewis, though he secured a judgment against the latter, the issues were found in favor of O'Meara. Slattery v. O'Meara,
The court found these facts material to the plaintiff's appeal. On April 30, 1935, after trial, judgment was rendered for the plaintiff to recover $5841 of Lewis and finding the issues in favor of O'Meara, in an action naming both as defendants, the former as operator and the latter as owner of an automobile which collided on July 13, 1934, with the plaintiff's car. At the time of the collision Lewis was using the car for his own personal pleasure and under circumstances which had no "connection" with O'Meara's business, *509 and this use was not incidental to or in furtherance of the same. June 3, 1934, the defendant had executed and delivered to O'Meara its "Automobile Garage Liability Policy" in evidence, which was in full force and effect at the time of the collision. By it the defendant undertook to insure O'Meara against loss by reason of liability imposed by law upon the assured for property damage or personal injury, including death, in certain specified amounts and under certain named conditions, according to this indorsement attached to the policy at the time it was delivered: "This policy insures against such losses — defined in clauses one and two above — when sustained by reason of the conduct of the automobile sales agency, . . . including ownership, maintenance and operation of any style, type or make of automobile, . . . for any or all purposes in connection with such business including pleasure use." The policy contained this among other conditions: "RIGHT OF RECOVERY. No recovery against the company by the insured shall be had hereunder until the amount of the loss or expense shall have been finally determined, either by judgment against the assured after actual trial or by written agreement of the assured, the claimant and the company, nor in any event, unless suit is instituted within two years thereafter." No judgment has been recovered by the plaintiff against O'Meara, nor have O'Meara, the plaintiff and the defendant entered into a written agreement whereby O'Meara or the defendant became bound to pay the judgment rendered in favor of the plaintiff against Lewis, or any part of it.
The court concluded that the defendant's undertaking was to pay to O'Meara, or under 4231 of the General Statutes to any person awarded judgment against him, the amount of the judgment with interest; the plaintiff had no right of action under 4231; *510 and the defendant had not waived its nonliability under the policy, and was not estopped to assert this defense by its participation in the trial upon Lewis' behalf.
The principal claim on the plaintiff's appeal is that upon the facts found Lewis as an employee of O'Meara was entitled to look to the defendant for indemnity for his (Lewis') liability, and that by virtue of 4231 he as plaintiff is subrogated to Lewis' rights. His chief argument is that failure so to construe the above recited clause insuring against liability incurred in the conduct of O'Meara's sales agency "including ownership, maintenance and operation of any . . . automobile . . . for . . . all purposes in connection with such business including pleasure use," would render meaningless the last three words quoted. This contention is predicated on the further provision that the policy "does not cover proprietors, partners or executives for the operation of personally owned automobiles whether or not used in the business of the Assured unless such automobiles are specifically described in the Policy and charged for at full individual car rates," and the fact that no such automobile is described therein. The plaintiff claims, therefore, that to give effect to the words "including pleasure use" the policy must be construed to cover the present case where Lewis, an employee, was driving O'Meara's car on a frolic of his own.
The wording of the policy, however, considered in connection with O'Meara's possible liability incident to the ownership and use of cars in connection with his automobile sales agency, makes clear that the words "including pleasure use" though inapplicable to such a case as the present, are not meaningless. The clause referring to the pleasure use of cars was presumably *511
inserted to obviate the possibility of the company claiming nonliability on the ground that the car was being used for pleasure, even though it was in connection with the assured's business, in some such situations, for instance, as that which we had before us in Ackerson v. Jennings Co., Inc.,
In view of our disposition of the plaintiff's appeal *512 no purpose would be served by considering that of the defendant.
There is no error.
In this opinion the other judges concurred.