Swift v. Zurich General Accident & Liability Insurance

NOURSE, P. J.

Plaintiff sued upon a policy of insurance providing indemnity in the operation of a certain automobile. The cause was tried by the court without a jury. Plaintiff had judgment and defendant has appealed on typewritten transcripts.

While the automobile was being driven by plaintiff’s minor son a collision occurred. Suit was commenced against plaintiff for damages. The matter was settled and judgment was by consent entered against plaintiff for $1887. Plaintiff then sued defendant on her policy for this sum and obtained judgment in that amount.

The policy undertook to indemnify the plaintiff against loss from the liability imposed by law respecting bodily injuries “by any person or persons (except those persons referred to in the proviso entitled ‘Exclusions’) as a result of the ownership, maintenance or use of” the automobile. The paragraph entitled “Exclusions” provided that the policy should not cover in respect to an automobile while driven by any person under sixteeen years of age, or by any person under, the age fixed by law, or while driven in any race or speed test, or elsewhere than within the limits of the United States and Canada. A rider was attached to the policy entitled “Omnibus Coverage Endorsement” and reading: “The policy

... is hereby extended

to apply to

any person

or persons . . . while riding in or

legally operating

any of the automobiles . . . and any person . . . legally responsible for the operation thereof. . . . This endorsement is issued subject to all the provisos, conditions

[711]

and warranties contained in the policy

. . . if not inconsistent herewith.”

(Italics ours.)

The single question of law involved on this appeal is whether this omnibus coverage rider supersedes the proviso in the body of the policy to the effect that the policy should not cover when the car was operated by one under sixteen years of age. In deciding a question of this character the courts will always seek to find the intention of the parties. The trial court found and ruled that this proviso was superseded by the omnibus clause, and we are satisfied that this judgment should be affirmed.