2ETNA CASUALTY & • SURETY CO. .v. :ETOCII. 409 YETNA CASUALTy & .SURFFY COMPAN y t. ETOCIL Opinion delivered June 13, 1927.... 1. INSURANCE—INDEMNrr y CONTRACT.—Parties to a contract . Of auto; mobile indemnity insurance can make anY'contract.ilotPioliitited by law. •g> 2. INSURANCE — LIABILITY ON INDEMNITY CONTRACT.—AD insurer on an indemnity insurance contract..covering a • truck,. held liable, though the policy stipulated against liability, if the .truck, was driven by a person, under the age of 16, where the trucfc at the time of the accident 'was driven by . an 11-year-old bOy;' left in charge but not authorized' to drive the truck while the .driver was in a building. Appeal from Phillips CirCuit Court K. D..'Robeit: ;son, Judge ; affirMed. Bevens & Mundt, fOr appellant.' W. G. Dinning, for appellee. KIRBY; J. The only tinestion ..Preseuted . 'by' -thi apPeal is whether or not the indennlitY insurance ethir-pany is liable on the policy for . the . payinent of Clainage incurred by the insured . hi the operation . of his . automobile truck being driven,. at the' tithe' of the injury, by boy eleven years of age. The material parts of the policy' are : " ThelEtna Casualty& SuretY Company does'herebY insure the assured, subject to all special provisions-con:- tabled herein and .the general . provisions indorsed herein, which are hereby referred, to :and made a:part of this policy. ,General provisions 9. ,Limitati,on of i•nse : Unless otherwise provided by.,an - agreement , in writing contained herein, or added hereto,' the company , shall ,not he liable under this policy for any, loss or, damage,: -1',
410 ./En■LA CASUALTY & SURETY CO. v. ETOCH. [174 (c) while being operated dn any race or speed, contest, or while being operated by any person in violation of law as to age, or by any person under the age of sixteen years." It appears from the testimony that the truck was being operated on the day of the injury by Harry Smith, appellee's regular driver, who was an experienced driver of full age; that he had some duty to perform inside of the Cleburne Hotel, and left Zack Williams, an eleven-year-old boy, in charge of the truck, to guard the contents and keep any one from getting anything out of it. Some one came along and ordered 'the boy to move the truck, and he undertook to do it, and drove or . backed it into a store and broke the plate glass front thereof. .The boy had not been employeed by appellee and had no authority from him or the driver to move the truck. In reporting the accident to the insurance company, appellee stated ' * "Person operating it, Zack Williams, age 11. * * * Describe fully place• and cause- of accident or, loss : • Truck had been parked on Porter Street next to postoffice, by Harry Smith, driver, and left boy in truck while he went in barbershop. _The boy was told by some one, passing to move the truck, and when he . started it he couldn't stop it, and ran into plate-glass window in building owned by B. L. Lyford, af No. 2 , 12 Porter Street." * .* , . The owner of the building recovered judgment against appellee for. the damage for breaking the glass, $119 and costs, and appellee in this suit recovered judgment against the insurance .company for the amount of the • said damages and costs, $131.20, from. which- this appeal .is prosecuted. • It' is earnestly Urged by the insurance company that it is not liable in- any event under its policy to indemnify appellee for damages Caused by his truck' while being operated by a . person under 16 years of age. The policy does expressly provide that the company shall not , be liable under it for any loss or damage while the automo-
Alt4.] /ETNA CASUALTy suRETy: qo. v. ETOCH. 411 bile .truck f ;cle d: , i therpiu ris..operated. under, tljes4ge ! of,..16, years; , +;+ : It will, 00,t-b0 . pmstippocl, that,,*el paytie§ carl any contract: . oft ;insurance, not i prohibitediby, lawtt,and . there. appears to be good...reason y . anindeimity coin pany..would,npt, Nilling . ifoi assump.,the :risk for 44,131,7, ag0,..resulting, from„cars,,bein&driven, or .eperated,by persons wider 16 ;yeArs of age.,.,;;!„,,, • ;,: ; IrThe testimony shp.ws: that,..although.the; truek, ,7as being;,operated: On, the ; day; of iithe,iinjury by appellee,'s employee, , an , experienced driyer„of full: age,, it , was ,lpft by him in charge , ! of , thel,hoy, w,ho *tempted Jo move it, at the suggestionf:Of sonwother, person,and who did start the truck and drive or back it into the store, causing the damage thereto. Such action was necessarily operating the truck at the tithe - of the injury, within the apparent and obvious meaning of the policy exempting or excusing the company:from liabilitylAr damages caused while the truck , ;was ,beiL:g operated by a,ny , person under 16 years of age',' in the oPinion 'Of'tli6 'Writer, concurred iri by l ' OnstiCes' . Woon and • SMITH , Brock Travelers!' .-. 'e o '01--AtU.'79,-- 35 A. 635; 88 aiid"/To4dey v Mlib lif • Tiid4rikity'0):; : 102'. ;i so. 61,.37 ,The . ,mic itrity of ,: the , coiiit is.rofrthe opinion,,hOwevO, that; since ;t4q.ji l **1 44,6410,0 a skilled and experienced driver of ,full rage.to operate:the truck; and lad no ,inforniation- that he , had left it in-care of. the eleven-year : old' , boy , whilein't h e discharge-, of his regUlar . dUties 2 , he:Shoad . nOt 'be held re t SPonSible ,for 'any damages resulting froth the'thOving of tlie #4*,),ix„the • boy,,,who had no l agthority from himto, either,watchfthe. truck om.ove. it. ... , • . „ • 1..:Tho'llurpose . in,taking..out , the . mstra lle & was.to provide indemnity against claw j ap$ caused ,Nr.thPOppriation of the truck, of course, and, : since it ., w ias left.sktauding temporarily by the regular driver, While he Went intO the 'hotel or barber shop to'attend"6 . Senie'diities there; and since , .•the' . hoy ,who'.'wAsi , requested ,. to watch •theAtruck had no authority whatever from him or his employerIto
MoveIt, the owner of the iruck is no more liable to the payment of damages caused by its unauthorized movement; nor the . insurance company any less liable to the paYment of indemnity therefor, than if the truck had lken: aCcidentally started • -by some other car bumping against it and the damage thereby caused; in other words, that, within -the meaning of the provisions of the policy, the truck, while standing at the curb until the driver could diseharge the necessary duties inside the building, was being operated by him within the meaning of that clause in the policy. Commonwealth V. Henry, 118 N. E. 224, L. R. A. 1918B, 827, 229 Mass. 19. The judgment is accordingly !affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.