Firkins v. Zurich General Accident & Liability Insurance

MR. JUSTICE THOMPSON (R. L.) Delivered the Opinion of the Court.

This is an appeal from a judgment entered against the plaintiff upon sustaining a demurrer to the amended complaint and denying leave to amend.

The complaint alleges that Mr. and Mrs. A. Delmuto were insured by the defendant insurance company against damages accruing on account of an accident in the operation of their Durant automobile. The insurance policy which was issued in the name of A. Delmuto, is attached to the complaint as an exhibit. It is further recited that upon application for this insurance policy the owners of the machine told the representative of the defendant that '“neither of them drove . . . said automobile, but that said automobile would be driven by Leo Delmuto, their son . . . (who) was of the age of fourteen years, and that they desired the policy so written as to cover the driving of said automobile by said fourteen year old minor”; that the usual form of a policy was thereupon issued including the following clause, “This policy shall not cover in respect of any automobile, . . . while driven or manipulated by any person under the age fixed by law, or under sixteen years of age in any event.” To this policy there was attached, as a part thereof, an amendment or rider containing the following provision: “The policy to which this endorsement is attached is hereby

extended

to apply to any person . . . legally responsible for the operation thereof, provided such use or operation is with the permission of the named assured, or if the named assured is (an) individual, with the permission of an adult member of the named assured’s household. ...”

It is then alleged that this plaintiff subsequently recovered a judgment for $3,409 against Mrs. A. Delmuto, as damages resulting from a collision with the Durant machine belonging to Mr. and Mrs. A. Delmuto, while it was being operated by their minor son Leo; that said judgment is in

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full force, no part thereof having been satisfied; that A. Delimito is dead and his said widow is insolvent and unable to pay said judgment. The complaint then prays for judgment against the defendant as a surety. A demurrer to the amended complaint on the ground that it fails to state facts sufficient to constitute a cause of action was sustained denying leave to amend. From this judgment the plaintiff has appealed.