Culley v. Farm Bureau Mut. Ins. Co. of Indiana

• Decision Date: 21 October 1946
• Docket Number: 28213.
• Citation: 69 N.E.2d 19,224 Ind. 483
• Parties: CULLEY v. FARM BUREAU MUT. INS. CO. OF INDIANA, Inc.
• Court: Indiana Supreme Court

69 N.E.2d 19

224 Ind. 483

CULLEY v. FARM BUREAU MUT. INS. CO. OF INDIANA, Inc.

No. 28213.

Supreme Court of Indiana

October 21, 1946

Appeal from Boone Circuit Court; Cassius M. Gentry Judge.

Scifres & Hollingsworth, of Lebanon, for appellant.

Fesler Elam & Fauvre and Howard S. Young, Jr., all of Indianapolis, Russell Richardson and Adney & Adney, all of Lebanon, and Leo Kaminsky, C. W. Richards and S. C Kivett, all of Indianapolis, for appellee.

STARR Chief Justice.

Appellant was injured in an automobile accident by being struck by a car owned by appellee, Orville Bailey. At the time of the accident the car was being driven by Orville Bailey's daughter, Mildred Bailey, a girl 14 years and 11 months of age who resided outside the corporate limits of a city or town. She was then operating the car in the business of her father. The accident occurred on a public highway in the City of Lebanon. At the time of the accident Orville Bailey, the owner, was insured under a liability policy issued by the appellee insurance company which contained the following exclusion clause: 'The company shall not be liable under this policy * * * (4) If bodily injury property damage or collision occurs while the motor vehicle is being operated by any person in violation of the law as to age, or in any event under the age of fourteen years * * *.'

Appellant sued said Orville Bailey and recovered a judgment against him. An execution on this judgment against Orville Bailey having been returned unsatisfied, appellant brought this action to recover of the appellee insurance company under its policy so issued to said owner, Orville Bailey. From a judgment against appellant this appeal is prosecuted.

At the time of the accident, it was unlawful to drive any motor vehicle upon a public highway of this state without a license from the state. § 47-458, Burns' 1940, Repl. A child between the ages of 14 and 16 could not obtain a license to operate a motor vehicle but could obtain a permit to drive to and from school provided such child did not reside within the corporate limits of any city or town and attend a school located therein. § 47-449, Burns' 1940 Repl. Also it was unlawful for any person having custody of a motor vehicle to permit any minor under the age of 18 to drive such vehicle upon the highway unless such minor had first obtained a permit. § 47-456, Burns' 1940 Repl.

Section 39-4309, Burns' 1940 Repl., dealing with casualty insurance, among other things provides, that no such policy as was issued here shall be issued to the owner of a motor vehicle 'unless there shall be contained within such policy a provision insuring such owner against liability for damages for death or injury to person or property resulting from negligence in the operation of such motor vehicle, in the business of such owner or otherwise, by any person legally using or operating the same with the permission, expressed or implied, of such owner.' Said section further provides that the omission of this provision from any policy of insurance shall not render the same invalid but shall be deemed to include such provision.

Appellee defended this action on the ground that Mildred Bailey, a minor as set out above, was not driving to or from school when the accident occurred, but was acting as an agent and servant of her father and was operating said car without a license or permit.

Appellant bases his appeal on two principal contentions; first, that the exclusion clause above set out was not violated; and second, that the exclusion clause was inoperative because of § 39-4309, Burns' 1940 Repl., the pertinent part of which we have herein set out.

It is our opinion that this exclusion clause was violated. Shedd v. Automobile Ins. Co. of Hartford et al., 1935, 208 Ind. 621, 196 N.E. 227. The case last mentioned is similar to the case at bar except that the minor involved in that case was not eligible to receive a school permit due to the fact that she resided in a city and attended school therein. There are cases which hold that if at the time of the accident an unlicensed driver, such as Mildred Bailey has reached the minimum age for a permit or license to operate a motor vehicle such operation is not in violation of law as to age. The weight of...