Aetna Casualty & Surety Company v. Etoch

• Decision Date: 13 June 1927
• Docket Number: 70
• Citation: 295 S.W. 376,174 Ark. 409
• Parties: AETNA CASUALTY & SURETY COMPANY v. ETOCH
• Court: Arkansas Supreme Court

295 S.W. 376

174 Ark. 409

AETNA CASUALTY & SURETY COMPANY v. ETOCH

No. 70

Supreme Court of Arkansas

June 13, 1927

Appeal from Phillips Circuit Court; E. D. Robertson, Judge affirmed.

Judgment affirmed.

Bevens & Mundt, for appellant.

W. G Dinning, for appellee.

OPINION

KIRBY, J.

The only question presented by this appeal is whether or not the indemnity insurance company is liable on the policy for the payment of damages incurred by the insured in the operation of his automobile truck being driven, at the time of the injury, by a boy eleven years of age.

The material parts of the policy are:

"The AEtna Casualty & Surety Company does hereby insure the assured, subject to all special provisions contained herein and the general provisions indorsed herein, which are hereby referred to and made a part of this policy. General provisions: 9. Limitation of use: Unless otherwise provided by an agreement in writing contained herein, or added hereto, the company shall not be liable under this policy for any loss or damage: * * * (c) while being operated in 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 employed 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, at No. 212 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...