Shedd v. Auto. Ins. Co.

• Decision Date: 14 June 1935
• Docket Number: No. 26485.,26485.
• Citation: 196 N.E. 227,208 Ind. 621
• Parties: SHEDD v. AUTOMOBILE INS. CO. et al.
• Court: Indiana Supreme Court

208 Ind. 621

196 N.E. 227

SHEDD

v.AUTOMOBILE INS. CO. et al.

No. 26485.

Supreme Court of Indiana.

June 14, 1935.

Action by Hugo B. Shedd against the Automobile Insurance Company and others. From a judgment sustaining a demurrer to the complaint, plaintiff appeals.

Transferred from the Appellate Court on account of constitutional question involved, section 4-217, Burns' 1933.

Affirmed.

Appeal from Superior Court, St. Joseph County; J. Fred Bingham, judge.

John G. Yeagley, of South Bend, for appellant.

Parker, Crabill, Crumpacker & May, of South Bend, for appellees.

HUGHES, Judge.

This was an action by appellant against appellees to recover upon a contract of insurance for money expended by appellant in the settlement of an action brought in the St. Joseph circuit court against appellant by Harvey S. Mohler for damages occasioned by appellant's automobile, driven by his son, colliding with an automobile driven by Mohler.

It is shown by appellant's complaint that he was the owner of an automobile, which was described in appellant's complaint and contract of insurance; and that on the 29th of December, 1931, the appellant's wife, Laura B. Shedd, and his son, Wayne Louis Shedd, age 15, with the knowledge and consent of appellant, drove said automobile on a public highway in St. Joseph county, Ind., west of the city of South Bend, known as route No. 20; that the said Wayne Louis Shedd was operating and driving said automobile, and, while doing so, he collided with an automobile driven by Harvey S. Mohler, causing damage to both of said cars; that the appellant and his family, including his son, Wayne Louis Shedd, lived in the city of South Bend.

It further appears from the complaint of appellant that the said Harvey S. Mohler claimed said collision was caused by reason of the carelessness and negligence of Laura B. Shedd and Wayne Louis Shedd; that he instituted two actions, one for damages to personal property, and one for personal injuries; that the appellees denied liability under said insurance contract upon the sole and only ground that the automobile of appellant was being driven by appellant's son, who was under the age of 16 years, and that he did not have a special permit or authority of the secretary of state to drive said automobile; that the appellant and appellees entered into an agreement in order that appellant might effect a compromise and settlement with Mohler, and, under the terms of the agreement, the appellant was authorized to compromise and settle each of said causes of action of said Mohler without releasing the appellees from liability upon said indemnity or insurance contract, and thereupon a compromise settlement was made by appellant paying so much money to said Mohler. The present action was brought to recoup the amount paid out in making settlement of the two causes of action.

The regular form policy of appellees contained a clause expressly excluding appellees from any liability or losses that might occur at a time when the automobile was being operated by any person in violation of law as to age or ‘under the age of sixteen years in any event.’ By a rider, the policy was amended and the phrase ‘under the age of sixteen years' wherever it occurs in this policy was eliminated and ‘under the age of fourteen years' substituted therefor.

The plaintiff averred in his complaint that by the express terms of the contract of insurance or indemnity the defendants knew that plaintiff's son was under the age of 16 years and authorized the plaintiff to permit and grant to his son the right and privilege of driving the automobile upon the streets and highways of the state of Indiana without in any way nullifying or affecting the liability of the defendants upon said insurance or indemnity contracts, and said modification so made at the time of the execution of said contract constituted a part thereof, and was as follows: ‘It is agreed that this policy is amended as follows: The phrase ‘Under the age of sixteen years' wherever it occurs in this policy is eliminated, and ‘Under the age of fourteen years' is substituted therefor.’

The appellees filed a demurrer to the complaint, which was sustained by the court. The appellant refused to plead further, and appealed from the ruling of the court on the demurrer.

The demurrer was for insufficient facts to constitute a cause of action, and the memorandum was as follows:

‘1. That it is provided in the policy of insurance attached to the complaint that coverage under the policy of insurance shall exclude loss or damagecaused by or occurring while the automobile insured was being operated by any person under the age limit fixed by law, while the complaint shows that the automobile, at the time of the accident causing the damage in question was being driven by the son of the plaintiff at a time when said son was fifteen years of age and was not licensed to drive an automobile as provided in Chapter 162 of the Acts of the General Assembly of the State of Indiana for the year 1929, appearing in the published Acts of 1929 at page 499 and in particular of Section Eight of said Acts, and of the Acts amendatory and supplemental thereto, and it appears in the complaint that said son was not driving said automobile exclusively for the purpose of going to and returning from school.

‘2. It appears from the allegations of the complaint that the automobile of the plaintiff was being driven by the plaintiff's minor son in violation of law and under the terms of the insurance, the policy of insurance did not cover accident or damage resulting from operation at a time when the automobile was driven in violation of law. That no charges were made in the policy of insurance that prevented the defendants from insisting on and relying on the terms of the policy of insurance. That no conditions thereof were waived.’

The only error assigned is that the court erred in sustaining defendant's demurrer to the plaintiff's complaint.

It was alleged in the complaint that appellant's son was 15 years of age, and that Mrs. Shedd and her son, with the knowledge and consent of appellant, took appellant's automobile and drove the same on a public highway west of the city of South Bend; that the son was driving and operating said automobile when the accident occurred.

The appellees contend that no liability exists on their part under the contract of indemnity because plaintiff's automobile was at the time of the collision being driven by a son of appellant under 16 years of age withouta permit or license having been issued by the secretary of state as required by law.

Section 8 of chapter 162, Acts 1929, vol. 8, section 47-408, Burns' 1933, section 11294, Baldwin's 1934, as far as is material here, provides:

‘That the secretary of state may issue a permit to any person who is less than sixteen (16) and over fourteen (14) years of age to drive or operate a motor vehicle on the highways of this state exclusively for the purpose of going to or returning from school, upon receipt of an application for such a permit. The application shall be countersigned by the father or mother and the proper school official of the school corporation in which such person is entitled to attend school, shall contain such information as may be prescribed by the secretary of state, and shall be sworn to before a notary public or other officer entitled to...