Birrenkott v. McManamay

• Decision Date: 24 December 1937
• Docket Number: 8092
• Citation: 276 N.W. 725,65 S.D. 581
• Parties: MAX BIRRENKOTT, Guardian Ad Litem, for Alfred R. Johnson, a Minor, Appellant, v. CHARLES McMANAMAY, Defendant and Aetna Casualty & Surety Company, Garnishee Defendant, Respondents.
• Court: South Dakota Supreme Court

65 S.D. 581

276 N.W. 725

MAX BIRRENKOTT, Guardian Ad Litem, for Alfred R. Johnson, a Minor, Appellant,

v.

CHARLES McMANAMAY, Defendant and Aetna Casualty & Surety Company, Garnishee Defendant, Respondents. South Dakota Supreme Court Appeal from Circuit Court, Brown County, SD Hon. Van Buren Perry, Judge. #8092—Affirmed. Frank L. Sieh, J. J. Fitzpatrick, Aberdeen, SD Howard Fuller, Fargo, ND Attorneys for Appellant. George H. Fletcher, Aberdeen, SD Attorney for Respondent. Opinion filed December 24, 1937

WARREN, J.

This action was brought upon a stipulated statement of facts which briefly are as follows: Alfred R. Johnson, a minor on whose behalf this action was brought, was injured in a collision while riding in a motorcycle package delivery driven by the defendant Charles McManamay. Both Johnson and McManamay were employees of one Vince Hanson, and when the collision occurred were engaged in the business of their employer. Hanson, at the time of the collision, was covered by a public liability insurance policy issued by the defendant insurance company. Judgment was secured on behalf of Johnson against the defendant McManamay for negligence in the operation of the motorcycle. Execution on said judgment was issued and returned unsatisfied, and the plaintiff here is now attempting to recover against the defendant insurance company under the public liability insurance policy carried by Hanson.

The policy under which plaintiff attempts to recover insures Hanson against claims for personal injuries or property damage resulting from the operation of the motorcycle in which Johnson was riding at the time of the collision. The policy contains a clause stating that such insurance shall also be in effect to protect any person operating the insured vehicle with the consent. of the assured. The policy also contained an exception to the clause covering personal injuries (hereafter called exemption clause) exempting the company from liability on any claims made by an employee of the assured for injuries suffered in the course of employment m the business of the assured.

Defendant McManamay had the consent of the assured (Hanson) to operate the insured vehicle, and the plaintiff contends that because of this the defendant company is liable for claims for personal injuries resulting from the operation of the insured vehicle by the defendant McManamay. Defendant insurance company denies liability upon the grounds that...