Charles Shelley brought his action against the Great American Mutual Indemnity Co. in the Henry Common Pleas setting up in his petition that he was the owner of a certain motor vehicle covered by a policy of insurance issued by the Company; that while operating his automobile along a certain street, he collided with another automobile in which one Audrey Wagner was a passenger, and which collision resulted in bodily injury to said Wagner; that Wagner brought suit against Shelley to recover damages and recovered a judgment for $2000 which Shelley paid.
This action in the instant case was brought .against the insurance company to recover said judgment, costs, etc., all in the amount of $5,-000, it being alleged among other things that the Company had refused to defend Shelley under its policy in the suit of Wagner.
The Company in its answer averred that it had refused to defend Shelley because of. the fact that when the accident occurred, he was in a state of intoxication operating his automobile in violation of 12628-1 GC., and that the injury to Wagner was caused solely by the negligence and carelessness of the insured, occasioned by his being intoxicated and that such risk had not been assumed by the Company when it issued its policy. It was further claimed as a second defense, that one of the excepted risks was that the Company would not be liable “while any automobile described herein is being used for any purpose in violation of any State or Federal law”
The lower court sustained a demurrer to the second defense, holding same not to be a good defense in law. The trial resulted in a judgment against the insurance company for the full amount claimed by Shelley. Error was prosecuted and the Court of Appeals, in reversing the judgment, held:
In the construction of the policy of insurance relative to the exclusion of risk assumed by the insurer in its policy agreement, particularly the exclusion in paragraph 4 General Exclusions, ..(Sections one and two) to wit:— While any automobile described herein is being used for any purpose in violation of any •State or Federal law,” the true intent and purpose of said provision in said policy agreement is to exclude the risk in favor of the insured, ii) the violation by the insured of the Criminal Code of Ohio, 12628-1 to operate a motor vehicle of any kind upon a public highway or street while in a state of intoxication.”
Judgment reversed.