Hunter v. Western & Southern Indemnity Co.

• Decision Date: 30 November 1935
• Citation: 92 S.W.2d 878
• Court: Tennessee Supreme Court
• Parties: HUNTER v. WESTERN & SOUTHERN INDEMNITY CO. et al.

Page 878

92 S.W.2d 878

HUNTER v. WESTERN & SOUTHERN INDEMNITY CO. et al.

Court of Appeals of Tennessee, Middle Section.

November 30, 1935.

Certiorari Denied by Supreme Court March 7, 1936.

Appeal from Chancery Court, Davidson County; R. B. C. Howell, Chancellor.

Suit by W. D. Hunter against the Western & Southern Indemnity Company and others. From an adverse decree, the plaintiff appeals.

Affirmed.

Felix E. Polston and J. B. Daniel, both of Nashville, for appellant Hunter.

Cate & Cate, of Nashville, for appellee insurance company.

J. ROY HICKERSON, Special Judge.

Mrs. Bessie Vincent carried an automobile liability insurance policy with defendant. The husband of Mrs. Vincent loaned the automobile to their nephew, Vincent McCord, to go to a dance. Vincent McCord was only 15 years old.

During an intermission at the dance, Vincent McCord and Kirkwood Trotter, a young man 25 years old, started in this car to the Banner office. Trotter was driving. On the trip complainant was struck and injured. In a suit for damages in the circuit court of Davidson county, W. D. Hunter, complainant herein, was awarded $10,000 damages against Vincent McCord and Kirkwood Trotter. Execution issued on the judgment and was returned "nulla bona."

Complainant brought this suit alleging defendant was liable for this judgment under the liability insurance policy which it had written on the automobile involved in the accident, or for the face of the policy; the policy limit being $5,000.

Defendant set up as a defense that Vincent McCord was operating the car in violation of a municipal ordinance of the city of Nashville which made it unlawful for any one under 16 years old to drive a car and that Kirkwood Trotter was operating the car without the knowledge or permission of assured or an adult member of her household; wherefore it said that complainant had no right of action against it under the terms of the policy.

The chancellor decreed in favor of defendant and dismissed complainant's bill.

Complainant's assignments of error in this court present two questions for determination: (1) That defendant, under its policy, was liable for the judgment against Vincent McCord; and, (2) that defendant, under its policy, was liable for the judgment against Kirkwood Trotter.

These propositions will be considered in the order above stated.

Section 11 of the policy provides in part: "This policy does not cover: * * * (c) while such automobile is being: * * * (2) operated by any person under the age limit fixed by law or in any event under the age of fourteen years. * * *"

At the time of the accident there was in force and effect in the city of Nashville an ordinance which reads: "No one shall drive a public licensed or business vehicle who is less than sixteen years of age, and no person incapacitated from using both feet and both hands to operate the vehicle shall be permitted to drive it, and no person shall drive an automobile, motorcycle or other mechanically propelled vehicle upon the streets of the City of Nashville who is less than sixteen years of age; provided, however, that this provision shall not apply to motor-bicycles, motor-scooters, or motor-pushers, with motors of not over two horse-power strength. `Public licensed or business vehicle,' as used in this section, shall mean any vehicle used for commercial or business purposes."

In the case of Phœnix Indemnity Co. v. Barrett, 167 Tenn. 116, 67 S.W.(2d) 135, 136, our Supreme Court held: "With respect to the insistence that the words `in violation of law' do not apply to this municipal ordinance, we think there can be no doubt that the chancellor was correct in following the opinion of the Supreme Court of the United States in U. S. Fidelity & G. Co. v. Guenther, 281 U.S. 34, 50 S.Ct. 165, 166, 74 L.Ed. 683 , wherein this question was directly dealt with. As said by Mr. Justice Sanford in that case: `When the words of the exclusion clause are taken in their ordinary meaning they are free from any ambiguity. * * * The plain and evident purpose of the clause was to prevent the Company from being held liable for any accident occurring while by reason of the age of the operator the automobile was being operated in violation of law.' And, further: `the Clause uses the broad phrase "fixed by law," in which the term "law" is used in a generic sense, as meaning the rules of action or conduct duly prescribed by controlling authority, and having binding legal force; including valid municipal ordinances as well as statutes.' What is here said is equally applicable to the broad phrase, "in violation of law," as used in the instant contract. He cites In re Mutual L. Ins. Co., 89 N.Y. 530, wherein the court held that a street grade fixed and established by an ordinance of the city council was one "fixed and established by law." And see Ex parte Lawrence, 69 Cal. 608, 11 P. 217, and Ex parte Christensen, 85 Cal. 208, 24 P. 747 construing the words "law of this state" as used in the Penal Code (section 435) requiring a license to include a city ordinance. Also, People v. Edmonds, 15 Barb. (N.Y.) 529, applying the phrase in the Constitution of the state `established by law' to a special law passed by a board of supervisors of a county.'"

"It results that the automobile was being operated in direct violation of a plain exclusion provision of the policy contract, and the decree adjudging liability against the indemnity company must be reversed, and the suit dismissed."

There can be no doubt that the policy would not have covered the judgment against Vincent McCord had he been driving the car at the time of the accident. The policy, however, defines "assured" to include "the named assured and any other person while riding in or legally operating such automobile and any other person, or organization legally responsible for its operation, provided: (a) it is being used with the permission of the named assured, or if the named assured is an individual, with the permission of an...