Holton v. Eagle Indem. Co.

• Citation: 145 S.E. 679,196 N.C. 348
• Decision Date: 12 December 1928
• Docket Number: 469.
• Parties: HOLTON v. EAGLE INDEMNITY CO.
• Court: United States State Supreme Court of North Carolina

145 S.E. 679

196 N.C. 348

HOLTON v. EAGLE INDEMNITY CO.

No. 469.

Supreme Court of North Carolina

December 12, 1928

Clarkson J., dissenting.

Appeal from Superior Court, Mecklenburg County; W. F. Harding Judge.

Action by Mary K. Holton against the Eagle Indemnity Company. Judgment for plaintiff, and defendant appeals. Error.

Prospective purchaser, operating automobile with motor company's consent, was bailee, not agent.

Action upon policy of automobile insurance, by which defendant agreed to indemnify the owner of an automobile, as the insured named therein, against loss, arising from liability for damages, by reason of the ownership, maintenance, or use of said automobile.

Plaintiff contends that, by the terms of the "Omnibus clause," included in the body of said policy, defendant also agreed to indemnify her, as the driver of said automobile, with the permission of its owner, against loss sustained by her, arising from her liability for damages, while driving said automobile.

Defendant denies any liability to plaintiff, under said policy; it contends that the provisions of the "Omnibus clause," included in the body of the policy, were expressly abrogated by an indorsement made on said policy, in accordance with a specific provision thereof; it alleges that, by the terms of said indorsement, it is liable, under the policy, only to the insured named therein, to wit, C. P Motors, Inc., the owner of the automobile which plaintiff was driving when her liability for damages accrued.

From judgment upon facts agreed, defendant appealed to the Supreme Court.

John M. Robinson, of Charlotte, for appellant.

Preston & Ross and T. A. Adams, all of Charlotte, for appellee.

CONNOR J.

On May 15, 1926, an automobile, owned by C. P. Motors, Inc., of Charlotte, N. C., and legally operated, with the permission of said owner, by plaintiff, as driver, collided with a truck. The collision occurred on a public highway in this state, while plaintiff was driving the automobile, as a prospective purchaser. At the time of the collision, she was not accompanied by any agent or employee of C. P. Motors, Inc. She was driving alone.

The collision resulted in injuries to the truck and to a person riding on it. The owner of the truck and the person injured brought an action for damages, resulting from their respective injuries, against C. P. Motors, Inc., as owner, and against plaintiff herein, as driver of the automobile. Upon the trial of said action, at the close of the evidence for the plaintiffs therein, the motion of C. P. Motors, Inc., for judgment as of nonsuit, was allowed. The action was dismissed as to C. P. Motors, Inc. The trial proceeded as to plaintiff herein, and resulted in a verdict against her, upon the issues involving her liability for damages, and in a judgment for the plaintiffs therein against her for the damages assessed by the jury.

Prior to the commencement of this action, plaintiff paid and fully discharged said judgment; she has also paid the fee of her attorney, who defended said action, in her behalf. Plaintiff has therefore sustained a loss, arising out of her liability, for damages, by reason of the legal operation of said automobile by her, with the permission of its owner. She contends that, by the terms of the policy of insurance upon which this action is brought, defendant is liable to her for the amount of her loss.

Defendant had issued said policy of insurance prior to May 15, 1926; it was in full force and effect at said date.

By the terms of said policy, as set out in the "Omnibus clause," included in its body, defendant agreed to indemnify against loss, arising out of liability for damages by reason of the ownership, maintenance, or...