Johnston v. New Amsterdam Casualty Co.

Abams, 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 clause extends the insurance to Hirst, and that the defendant is liable in damages to the plaintiff in the amount of his judgment. The defendant contends that the “omnibus coverage” clause, purporting to extend the insurance to certain persons therein referred to-, is subject to the exclusions set out in the policy under Condition A, among which is this provision: “This policy does not cover any automobile while being used in any- business, trade, or occupation other than described in statement 8 of the schedule.” Statement 8 is as follows: “The occupation or business of the assured is. wholesale and retail teas, coffees, and sugars.”

The controversy, it will be observed, is reduced to the compass of a single question: Under the terms of Condition A and statement 8 does the policy cover the car in question while being used by Hirst for his own convenience or pleasure without the knowledge of the Kenny Company, and on “business entirely his own” and utterly .unrelated to his employer’s business and to his duties as its traveling salesman ? In our opinion the question should be answered in the negative and the judgment of the trial court should be affirmed.

■ As authority for his position the plaintiff cites Dickinson v. Maryland Casualty Co., 101 Conn., 369, 41 A. L. R., 500;

Peterson v. *765 Maloney (Maryland Casualty Co., Garnishee), 232 N. W. (Minn.), 790, and Stovall v. New York Indemnity Co., 8 S. W. (2nd) (Tenn.), 473; but neither of these cases is decisive of the question presented in the present appeal. In the first two, the clause purporting to extend the insurance so as to be available to certain persons in like manner and under the same conditions as it is available to the named assured, is substantially the same as that of the policy under consideration. Yet, there is a marked difference between this policy and the policies construed in the Dickinson case and the Peterson case.

The crucial distinction is this: Condition A and statement 8, above set forth, do not appear in the latter policies. In the Stovall case the determinative question, as stated in the opinion, was whether at the time of the accident the employee was using the automobile with the permission of his employer.

We recognize the established principles that a policy of insurance, if the language is ambiguous or susceptible of more than one interpretation, should be given a construction favorable 'to the assured, and that if the insurer’s liability is limited by unambiguous language the policy, as a rule, should not be construed to enlarge the liability beyond the plain meaning of its terms.

Gant v. Ins. Co., 197 N. C., 122 ;

McCain v. Ins. Co., 190 N. C., 549 . In the case before us the “omnibus coverage” clause extending the insurance to persons other than the named assured is limited by the provision that the policy shall not cover any automobile while being used in any business, trade, or occupation except the occupation or business of dealing in teas, coffees and sugars. The phrase, “while being used,” has reference to the time of the casualty; and obviously at that time the car was not being .used in the employer’s business. Judgment Affirmed.