Phoenix Indem. Co. v. Barrett

• Decision Date: 27 January 1934
• Citation: 67 S.W.2d 135,167 Tenn. 116
• Parties: PHOENIX INDEMNITY CO. v. BARRETT.
• Court: Tennessee Supreme Court

67 S.W.2d 135

167 Tenn. 116

PHOENIX INDEMNITY CO. v. BARRETT.

Supreme Court of Tennessee.

January 27, 1934

Appeal from Chancery Court, Rutherford County; Thos. B. Lytle Judge.

Action by A. S. Barrett against Phoenix Indemnity Company. Judgment for plaintiff, and defendant appeals.

Reversed and suit dismissed.

Manier & Crouch, of Nashville, for appellant.

C. C Jackson, of Maryville, for appellee.

CHAMBLISS Justice.

Recovery sought in this suit from the indemnity company on its policy contract of the amount of a judgment at law, based on negligence in operation of an automobile, was resisted before the chancellor on the ground that the automobile was being driven, at the time the accident occurred on the streets of Murfreesboro, by a boy under sixteen years of age; that this was in violation of an ordinance of the city of Murfreesboro, and the indemnity company relied on a provision in its policy contract reading as follows:

"This policy shall not indemnify the assured in respect of any automobile while driven or manipulated *** by any person in violation of law as to age, or under the age of fourteen years in any event."

The facts were stipulated, and from a judgment against it, the indemnity company appeals.

The determinative questions here presented are conceded to be: (1) Whether or not the language of the policy, above quoted, "in violation of law as to age, " is to be construed as applying to a violation of a municipal ordinance; and (2) whether or not the provision of the municipal ordinance relied on is void because too broad.

Considering these questions in inverse order, it appears that the ordinance relied on, according to the stipulation, reads as follows:

"Section 1. Be it ordained by the City Council of the City of Murfreesboro, Tennessee: That the following laws, rules and regulations shall govern the operation, driving and controlling of vehicles on the streets of the City of Murfreesboro, Tennessee: (Here follow 12 items not applicable to this case.)

13. No child under the age of sixteen years shall be permitted to drive a vehicle in the City."

This clause of the stipulation immediately follows the foregoing excerpt from the ordinance:

"The foregoing shall be deemed sufficient properly to place the applicable provisions of said ordinance in evidence; but the complainant reserves the right to attack the validity of Sub-Section 13 of Section 1 of the ordinance on the ground that said subsection is too broad as not being limited to the streets of the City; but it is agreed that no other attack can be made on the validity of said ordinance or said sub-section."

In support of this attack on the validity of subsection 13, it is argued that this subsection may apply to and cover any part of the city, even privately owned inclosures, and that, so applied, it is void for unreasonableness.

In considering the validity of an ordinance, the rule of construction is that laid down in Carroll Blake Const Co. v. Boyle, 140 Tenn. 181, 203 S.W. 945, 948, to the effect that, where an ordinance, like a statute, "is susceptible of two constructions one of which will render it void and the other valid it is the duty of the court to...