This was a nonjury action in the Marion Circuit Court on an "Automobile Garage Liability Policy." The underwriter appeals from a judgment for $576 in favor of the named insured.
The "named insured" (plaintiffs-appellees here) were man and wife, partners doing business as "Marion County Motor Company." The claim under the policy arose out of the expense incurred by them in behalf of an employee (their son) in defense of an action in the United States District Court in Mississippi against the employee for wrongful death to another while operating the employee's own pick-up truck upon the business of the Marion County Motor Company. He was not a member of appellees' household.
Defendant assigns as error (1) the judgment, (2) inclusion as an element of the court's award $450 attorneys' fees paid in defending the Mississippi action, (3) witness' fees, $126 for the same, (4) special findings of fact No. 5, 6, 7, and 8, and (5) the opinion of the court below construing Clause III (b) of the policy as provision for forfeiture.
We take up the last first. The pertinent insuring agreement of the policy was: "To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of * * * death * * * resulting (from bodily injury) * * * caused by accident and arising out of the hazards hereinafter defined." (Parenthesis supplied.)
The risks and perils borne by the underwriter were defined (in part):
In Clause III of the policy the unqualified word "insured" is defined to include, among others, any employee of the named insured "while acting within the scope of his duties as such." The text continues:
"* * * This policy does not apply:
We do not construe sub-clause (b), above, as a forfeiture. While in certain circumstances the insuring agreements run in favor of an employee, yet to exclude this class "with respect to any automobile owned" by the employee is not inconsistent with a garage liability policy. Appleman,
The words are almost verbatim those used in McDowell v. United States Fidelity & Guaranty Co., 260 Ala. 412, 71 So.2d 64, 69:
As to the construction of insurance contracts generally, see Trans-Continental Mutual Insurance Company, Inc. v. Harrison, 262 Ala. 373, 78 So.2d 917.
The contract not covering the risk the judgment below is due to be reversed.
Reversed and remanded.