Bryson v. International Indemnity Co.

FINCH, P. J.

-June 17, 1921, the defendant issued its policy of indemnity insurance to Avran S. Tomich against liability for injuries by accident in the use of his Ford

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truck to “any person or persons other than passengers carried for an expressed or implied consideration” up to an amount not exceeding $10,000 in any one accident and not exceeding $5,000 to any one person, hut excluding “any liability imposed by any vrorkmen’s compensation act.” Under the heading “Schedule of Statements” the following appear:

“5. The automobiles are used for the following purposes only: Hauling. 6. None of the automobiles herein described are rented to others or used to carry passengers for any express or implied consideration, except as follows: No exceptions.”

The policy provides: “No action for the indemnity provided by this policy shall lie against the company except for reimbursement of the amount of loss actually sustained and paid in money by the insured in full satisfaction of a judgment duly recovered against the insured after final determination of the litigation ... it is a condition of this policy that the insolvency or bankruptcy of the insured shall not release this company from the payment of damages for injuries sustained or loss occasioned during the term this policy is in force; and provided, further, that in the event judgment shall be secured against such insolvent or bankrupt assured hereunder in an action brought by any injured person, or his heirs or personal representatives in case of death from any accident covered hereunder, then an action may be brought against the company on this policy, and subject to its terms and conditions, by such injured person, his heirs or personal representatives, as the case may be, to recover on said judgment an amount not in excess of the amount of such judgment nor in any event an amount in excess of the limits of indemnity as set forth in this policy.”

Tomich was a sewer contractor, engaged in repair work and in new construction. The truck in question was used in connection with such work. In his employ was a man named Ciriacio P. Sordia, who during the life of the policy was injured through the negligence of Tomich in causing the truck to overturn while he and Sordia were riding therein on their way from the place of employment. Sordia brought an action against Tomich for damages caused by