Lahti v. Southwestern Automobile Insurance

TYLER, P. J.

Action to recover indemnity under a policy of automobile liability insurance.

The policy which was issued by defendant company in the sum of $5,000 covered a Chevrolet sedanette automobile of which one Margaret McMenamin was the owner and the assured named in the policy. Thereafter, and when the policy was in full force and effect, William McMenamin, her husband, while driving the automobile with the knowledge and consent of his wife, struck and injured the plaintiff, who brought suit against William McMenamin and recovered judgment in a sum in excess of $16,000. Margaret Mc-Menamin was not made a party to the action and no judg

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ment has been recovered against her. Thereafter the present action was instituted against the insurance company, as authorized by statute (Stats. 1919, chap. 367, p. 776), to recover on its policy in the sum of $5,000, together with interest on the judgment against William McMenamin.

Under the authority of the statute referred to and based upon the judgment recovered against William McMenamin, the court below rendered judgment for plaintiff on the theory that William McMenamin was included in the provisions of the policy and that defendant was therefore liable to plaintiff on that instrument. From this judgment and from an order denying a new trial this appeal is taken.

The sole question here presented is whether or not defendant company is bound under the terms of the policy to pay a judgment rendered against William McMenamin where none was rendered against Margaret McMenamin.

The pertinent parts of the policy provide as follows:

“ (Defendant) Does hereby agree:

“ (1) To Indemnify the person . . . named in Statement 1 of tlie Schedule of Statements and herein called the Assured, against loss from the liability imposed by the law upon the assured ... as the result of an accident . . . caused by reason of the use, ownership, or maintenance of any of the automobiles . . .

“2. To defend in the name and on behalf of the assured any suit brought against the assured. . . .