On appeal from the Essex County Circuit Court.
For the defendant-appellant, Skeffington & Walker.
For the plaintiff-respondent, Franklin, Kiernan & Cashion.
The opinion of the court was delivered by
WELLS, J. This is defendant's appeal from a judgment entered in the Essex Circuit Court, in favor of the plaintiff and against the defendant.
The plaintiff, Sadie Penza, prior to the institution of the present action had brought suit against one John H. Edwards, Jr., owner of a Pierce-Arrow sedan, and William Hubert, the driver, to recover damages for the injuries which she sustained in an accident by reason of the negligent operation of said car by Hubert. She recovered a judgment against Hubert but failed to recover against John H. Edwards, Jr., judgment having been entered in his favor.
Upon the return of execution against Hubert unsatisfied, the present action was brought under the statute (Pamph. L. 1924, p. 352) against the defendant insurance company, which had issued a policy of automobile liability insurance to said John H. Edwards, Jr., as the named assured, covering the said Pierce-Arrow sedan.
The policy contained the so-called "omnibus" clause, which among other things, provided that the unqualified word "Assured" wherever used in the policy, includes not only the named assured, but any other person or organization while legally using such automobile including also any other person or organization legally responsible for the use thereof, 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 present suit was by agreement submitted to the trial court, sitting without a jury, on the pleadings in the original suit, depositions of William Hubert and John H. Edwards, Jr., taken in Washington, District of Columbia, the writ of execution returned unsatisfied and non-waivers, &c.
The plaintiff claims the right to recover from the defendant insurance company the amount of the judgment rendered against Hubert, on the ground that the said "omnibus" clause of the policy of insurance issued by defendant to John H. Edwards, Jr., covers Hubert's liability to the plaintiff. It appears from the evidence that the automobile covered by the policy was owned by John H. Edwards, Jr., and loaned by him to his father, John H. Edwards, Sr., to use; that in the use thereof by the father it was contemplated that it would
be driven by some other person than the father and that the father had the permission to use the car through ...