On appeal from a judgment for the defendants entered in the Supreme Court following the striking of the complaint.
For the plaintiffs-appellants, John A. Laird and Harry Cohn.
For the defendants-respondents, Walter F. Waldau and Lindabury, Depue & Faulks.
The opinion of the court was delivered by
CASE, J. The complaint contains two counts; the first for physical injuries suffered by the wife and the second for incidental expenses incurred by the husband. A brief recital of the first count will sufficiently reflect the pleading.
The first count of the complaint alleges that Mrs. Berry was injured by a truck owned by Abbott's Dairies, Incorporated, and operated by Edward A. Moncovage; that the injuries were caused by the negligent operation of the truck; that previous thereto Abbott's Dairies, Incorporated, procured a policy from the defendant companies insuring the Abbott's company against liability arising out of the maintenance and operation of the truck and that the policy provided that -- to quote the pleading -- "any person injured through the negligent operation of the said automobile truck had the right to institute a suit on any judgment recovered against the operator of the same in the event that the said operator by reason of his insolvency failed to make payment of said judgment;" that thereafter plaintiffs instituted action against the Abbott's company and Moncovage alleging that Mrs. Berry's injuries were sustained as a result of the aforesaid negligent operation of the truck; that at the trial Mrs. Berry recovered a judgment against Moncovage for $1,000; that execution was issued and returned unsatisfied by reason of the insolvency of Moncovage; and that thereupon the present action was instituted for the recovery from the insurance companies of the judgment against Moncovage.
The actual wording of the policy in respect to the alleged coverage in favor of Moncovage is as follows:
"The unqualified word 'Assured' wherever used in Coverages A and B and in other parts of this Policy when applicable to these Coverages, includes not only the named Assured but also any other person or organization while legally using the automobile, including also any other person or organization legally responsible for the use thereof, provided the disclosed and actual use of the automobile is 'Pleasure and Business' or 'Commercial,' each as defined herein, and further provided that such use is with the permission of the named Assured who, if an individual, may give such permission through an adult member of his household other than a chauffeur or domestic servant. The provisions of this paragraph shall not apply, however, to any person or organization, or employe thereof, operating an automobile repair shop, public garage, sales agency or service station and arising out of the operation thereof."
It will be observed that the coverage is by no means so broad as is alleged in the complaint and that the wording of the complaint does not constitute Moncovage an insured under the policy provision. Affirmance might be made to rest upon the feature alone; but the uncontradicted proofs pro and con, submitted on the motion to strike the complaint, give added support.
Appellants' brief admits as follows:
"At this trial [viz., in the damage suit of Berry v. Abbott's Dairies, Incorporated, and Moncovage], the testimony given indicates that Moncovage was in the garage business and at the time of the accident in question, was taking the Abbott's dairies' truck to his garage for the purpose of there inspecting it and possibly repairing it and the direction of a verdict in favor of Abbott's dairies came about as the result of a failure to show that Moncovage was the agent or servant of Abbott's dairies at the time and place of the accident so as to make that corporation responsible for his negligence."
Another fact, stated in the terms of the inference most favorable to the appellants, is that Moncovage, in taking the truck to his garage for the purpose of inspection and repair, carried on it a ...