Jackson ex rel. Porter v. Maryland Casualty Co.

Per Curiam.

Tbe policy of insurance sued on did not cover tbe liability of tbe named insured, or tbat of any other person embraced within its terms, for a willful or intentional injury. Tbe policy provided indemnity “against loss from liability imposed by law upon tbe assured for damages on account of bodily injuries accidentally suffered by any person, caused by tbe ownership or operation of tbe automobile described.”

In Jackson v. Scheiber, 209 N. C., 441 , 184 S. E., 17 , it was held tbat tbe evidence of this plaintiff showed an injury intentionally inflicted on him by Pearson, tbe driver of Scheiber’s automobile (to which tbe policy of insurance applied), and tbat Scbeiber was entitled to judgment of nonsuit on tbat ground.

But plaintiff contends tbat since bis judgment against Pearson was rendered upon a verdict establishing tbat tbe injury was due to tbe negligence of Pearson, tbe defendant insurer is estopped now to set up tbe defense tbat Pearson’s act was intentional rather than negligent.

While, ordinarily, a liability insurer will not be permitted to set up, as a defense to an action based upon an unpaid judgment rendered against tbe insured on account of tbe negligent operation of tbe automobile referred to in the policy, tbat tbe injury was intentionally inflicted, tbat rule would not apply when tbe original complaint alleges as tbe cause of action a willful or intentional injury, and the evidence of tbe plaintiff shows tbat tbe injury was intentionally inflicted by tbe assured. Tbe verdict should be interpreted in tbe light of tbe allegations of tbe complaint and tbe testimony at tbe trial. McIntosh N. C. Prac. & Proc., sec. 604;

Cox v. R. R., 149 N. C., 86 , 62 S. E., 761 .

In Stefus v. Indemnity Co., 111 N. J. L., 6, 166 Atl., 339 , where, in a suit by an injured third party against tbe liability insurer, tbe defense was set up tbat tbe injury complained of was willfully inflicted, it was held tbat this defense was unavailable for tbe reason tbat tbe complaint in tbe former suit did not charge a willful or wanton injury.

*549 In the instant case it appeared that in the former action the plaintiff alleged a willful wrong and testified on the trial that the injury suffered by him was intentionally and purposely inflicted by Pearson, and that upon such plea and testimony judgment was rendered absolving from all liability the named insured, the owner of the automobile, for whose indemnity the policy was primarily issued. And on the trial of the present case, the testimony offered again showed that the injury was due to the willful and intentional act of the driver of the automobile described in defendant’s policy.

For these reasons we hold that plaintiff has failed to make out a case against this defendant, and that the judgment of nonsuit was properly entered.

Judgment affirmed.