Johnston v. New Amsterdam Cas. Co.

• Decision Date: 13 May 1931
• Docket Number: 474.
• Citation: 158 S.E. 473,200 N.C. 763
• Parties: JOHNSTON v. NEW AMSTERDAM CASUALTY CO.
• Court: North Carolina Supreme Court

158 S.E. 473

200 N.C. 763

JOHNSTON v. NEW AMSTERDAM CASUALTY CO.

No. 474.

Supreme Court of North Carolina

May 13, 1931

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

Action by Hugh Johnston, by his next friend, against the New Amsterdam Casualty Company. From a judgment for defendant plaintiff appeals.

Affirmed.

Automobile liability policy did not cover automobile while being used by insured's employee on business entirely his own.

This case was heard upon an agreed statement of facts. The defendant is a corporation engaged in the business of writing liability insurance on automobiles, and on April 1, 1928 executed and delivered to the C. D. Kenny Company, Inc., one of its liability insurance policies. On December 22, 1928, J B. Hirst, an employee of the Kenny Company, while driving the car referred to in the insurance policy, negligently damaged a car of the plaintiff, who brought suit against Hirst and the Kenny Company, but recovered only against Hirst a judgment for $435, with interest and costs. An execution was issued on the judgment and returned unsatisfied; Hirst being insolvent. At the time of the accident, the insurance policy was in force and effect. Hirst had customarily used the car in going from and returning to his home morning and evening. He kept it at his house during the night. In going to and from home after and before work he was legally in possession of it and used it with the knowledge and consent of the Kenny Company. When the collision and consequent damage occurred, Hirst was driving the car without the knowledge of the Kenny Company on the Derita road about 10 o'clock at night, in company with a woman whom he had taken up at the City Library about 6 o'clock. He was engaged in "business entirely his own and without the knowledge of the Kenny Company." The Derita road is north of the city limits. Hirst lived in the southeastern section of the city of Charlotte, known as Dilworth. He was a traveling salesman for the Kenny Company, and used the car in his work for the company. When he took the woman in his car he had finished his work for the day. The policy of insurance is set out in the record.

Upon the agreed facts, Judge Harding adjudged that the plaintiff take nothing by his action and recover his costs. The plaintiff excepted and appealed.

G. T. Carswell and Joe W. Ervin, both of Charlotte, for appellant.

J. Laurence Jones and J. L. Delaney, both of Charlotte, for appellee.

ADAMS J.

The policy of insurance contains an "omnibus coverage" clause in which the defendant agreed "to extend the insurance, subject to the limits expressed in Statement 6 of the Schedule, so as to be available in the same manner and under the same conditions as it is available to the named assured (C. D. Kenny Company, Inc.), to any person or persons while riding in or legally operating any of the automobiles described in the schedule and to any person, firm, or corporation legally responsible for the operation thereof, provided such use or operation is with the permission of the named assured," etc. Statement 6 of the schedule provides that the liability of the defendant shall not exceed the amounts named in subsections a, b, and c, respectively.

The plaintiff takes the position that this...