This is a motion for summary judgment which was denied at Special Term. Upon appeal to the Appellate Division the order was affirmed by a divided court. Leave was thereupon granted by the Appellate Division to appeal to this court upon the certified question: "Are the plaintiffs entitled to summary judgment on this record?"
The facts are undisputed and the appeal presents only questions of law.
The defendant insured one Charles H. Strong against all claims which he should become legally liable to pay as damages arising out of bodily injuries accidentally sustained by any person or persons, caused by the ownership, *Page 362 maintenance and use of a Packard automobile owned by him. Harmon V. Strong, a son of Charles H. Strong, while operating the automobile with his father's permission, was involved in a collision with an automobile containing the plaintiffs, injuring them. At the time the son, who was seventeen years of age and had a junior operator's license, was returning home from a social visit. The hour at which the accident occurred was shortly after midnight. The plaintiffs brought separate actions against Charles H. Strong and his son, Harmon V. Strong. The defendant in this action, the United States Casualty Company, exercised its right under the policy of insurance to defend the actions. The actions were consolidated and the case was tried before a jury and verdicts for the plaintiffs rendered. Execution on the judgment was returned unsatisfied and the Strongs subsequently adjudged bankrupt. The plaintiffs then instituted suit against this defendant, the casualty company, on the policy of insurance issued by it to Charles H. Strong. The defendant interposed one defense, namely, the exclusion clause in the policy, reading as follows: "This policy shall exclude any obligation of the Company: (a) under any of the above agreements, while any described automobile is being driven in any race or speed test,or by any person under the age fixed by law or under the age of fourteen years in any event." (Italics interpolated.) It pointed out that the automobile was being operated in violation of the terms of the son's junior operator's license and the rules and regulations established by the Commissioner of Motor Vehicles, since it was being operated after midnight and not while traveling to or from school, nor in the ordinary pursuit of the business of the parent or guardian of the licensee, nor while accompanied by a parent, guardian, etc. On this state of facts, as set forth by the pleadings and affidavits, a motion for summary judgment was made by the plaintiffs. As noted, the motion was denied and the Appellate Division affirmed. *Page 363
Taking up the exclusion clause, we find that the language employed is not applicable to the driver of the car in the case at bar. The policy provided that the motor vehicle should not be driven by one under "the age fixed by law or under the age of fourteen years in any event." The statute provides that no operator's or chauffeur's license shall be issued to any person under eighteen years of age, except that junior operators' licenses may be issued to minors who have arrived at the age of sixteen years. (Vehicle and Traffic Law [Cons. Laws, ch. 71], § 20) A boy over sixteen years of age possessing a junior operator's license may lawfully drive an automobile, although the time during which he may drive is restricted. This boy was seventeen years of age and possessed a junior license. He was not, therefore, a person under "the age fixed by law or under the age of fourteen years in any event." Why, then, does the defendant complain? Is it because the son violated the restrictions imposed on a junior licensee? The clause in the policy does not deal with the violation of the terms of a license. The provision relates solely to the question of age and the son was old enough lawfully to drive an automobile. If the insurance company desired the exclusion clause to cover not only a case where the driver is under the age fixed by law but also a case where the terms of the license are violated, it should have so specified. The court is not at liberty to inject a clause into the policy or to make a new contract for the protection of the insurance company.
The same question arose in Brock v. Travelers Ins. Co. (88 Conn. 308), where the court held that this same exclusion clause related only to the question of age and not at all to violations, the court saying: "The provision relates solely to the question of age, and not at all to the question of whether the operator has complied with the requirements of law." A like result has been reached in other jurisdictions. (Mannheimer Bros. v.Kansas Casualty Surety Co., 147 Minn. 350; Yorke v.Continental *Page 364 Casualty Company of Canada, [1929] 64 Ont. Law Rep. 109. Cf.Bitzer v. Southern Surety Co., 245 Ill. App. 295.)
The case of S. E. Motor Hire Corp. v. New York IndemnityCo. (255 N.Y. 69) differed, in that the question raised therein was whether the insurance company had waived its defense, and in addition the exclusion clause involved in that case differed from the one in the case at bar. Nor is United States F. G. Co. v.Guenther (281 U.S. 34) in point. That case decided that a municipal ordinance, prohibiting a minor under the age of eighteen years from operating a motor vehicle upon the streets of the city establishes an "age limit fixed by law."
If it be urged that the exclusion clause as drawn is at least ambiguous, then such ambiguity will be resolved against the insurer, under the principle of contra proferentem, or, in other words, the one who draws the contract and offers it should have the ambiguity resolved against him. (Gerka v. Fidelity Casualty Co., 251 N.Y. 51; Marcus v. United States CasualtyCo., 249 N.Y. 21.)
The order of the Appellate Division and that of Special Term should be reversed and summary judgment directed in favor of the plaintiffs, with costs in all courts.
The question certified should be answered in the affirmative.