I agree with the statement in the majority opinion that the construction and effect of the policy upon which this action is based as regards the issues involved in this appeal are to be determined in accordance with the law of Massachusetts and that, while the decision of this action must be based upon the terms of the indorsement, constituting as it does a distinct policy applicable to matters and territory not covered by the policy to which it is attached, the opinion of the Supreme Judicial Court of Massachusetts in the MacBey case, referred to in the majority opinion, sufficiently evidences the construction which that court would give to the provisions of the indorsement were the question there presented. I therefore concur in the result. I cannot, however, agree with so much of the majority opinion as indicates that, if the question involved were presented to us under such circumstances that our decision would not be controlled by the law of another jurisdiction, a like result should be reached.
The policy is essentially one to indemnify the insured against liability for loss. Its meaning and effect should not be determined upon the basis of the right *Page 655 of the person injured in the course of the operation of the automobile to recover from the company but upon the basis of the right of the insured to be protected from loss. In the policy the company has agreed, voluntarily and no doubt upon an adequate consideration, to extend its protection not only to the named insured but also to any person operating the car with permission or consent in accordance with its provisions. The fact that the named insured happens to be the one to whom a liability resulting from the operation of the car by someone other than himself is incurred, should not derogate from the obligation which the company has assumed to protect the latter from liability. Suppose the person operating the car in this instance had paid the judgment secured by the plaintiff against him, is it possible that he would be denied a right to recover from the company by way of indemnity the amount so paid? Certainly the primary and underlying purpose of the policy could only be carried out by furnishing such indemnity. Nor is there anything in its terms which militates against such a result. The policy in the protection it affords has a double aspect; it protects the named insured when he is operating the car; and it no less protects any other person while operating it with the consent and permission specified in the policy. The word "others" in the clause under which the company agrees to indemnify the named insured or any person operating the car with his consent "against loss by reason of the liability to pay damages to others" means persons other than the one invoking the protection of the policy, whether it be the named insured or one who is operating the car with consent.
While the indorsement expressly eliminates the definition in the policy whereby the word "insured" as used in it is defined, unless qualified, to include any *Page 656 person entitled to protection under its provisions, that is a necessary result from the very terms of the policy; such person becomes in fact, by the extension of the policy to include protection to him, the "insured" as much as though he were named in it; and this is recognized in the indorsement, in the incorporation as a part of it of provisions in the policy wherein the word "insured" is used when it is intended to refer to either while the words "named insured" are used when only the person named is intended, and in the use of the words "named insured" in the added provisions contained in the indorsement. If the provisions of the policy be read with this in mind, there will be found nothing in them which does not fully accord with the conclusion that one operating the car with the consent or permission specified in the policy is entitled to indemnity against liability within its coverage for damage suffered by the named insured. If that is so, the named insured would be entitled to maintain his action against the insurer to enforce a judgment secured against the operator of the car. Guerin v. Indemnity Ins. Co., 107 Conn. 649, 653, 142 A. 268, 269; Rochon v. Preferred Accident Ins. Co., 114 Conn. 313,315, 158 A. 815.
In this opinion HAINES, J., concurred.