#### JOHN BEN JACKSON, by His Next Friend, GOEBEL PORTER, v. MARYLAND CASUALTY COMPANY.

(Filed 24 November, 1937.)

1. Insurance § 43—

A policy indemnifying insured automobile owner against loss from liability imposed by law for “bodily injuries accidentally suffered by any person” does not cover an injury to a third person' intentionally inflicted by a person driving the car with the owner’s permission.

2. Same — Insurer held not estopped to set up defense that injury was intentionally inflicted by former verdict properly interpreted.

In an action against insurer based upon an unpaid judgment entered against the driver of the car insured on a verdict of negligence in the operation of the car, ordinarily the insurer may not set up the defense that the injury was intentionally inflicted, but where the allegations and evidence in the former trial were to the effect that the injury was intentionally inflicted, the verdict will be interpreted in reference thereto, and the former judgment will not estop insurer from setting up the defense.

3. Trial § 37—

A verdict will be interpreted in the light of the allegations and evidence.

Appeal by plaintiff from Hill, J., at September Term, 1937, of Mecklenbubg.

Affirmed.

Tbis was an action upon a liability insurance policy issued by tbe defendant to Geo. F. Scbeiber on bis automobile. Tbe plaintiff alleged tbat defendant’s insurance contract covered tbe liability of one Eobert Pearson, wbo was driving tbe Scbeiber automobile at tbe time plaintiff was injured by it, and tbat plaintiff’s recovery of damages against *547Pearson and tbe return of execution unsatisfied rendered defendant liable to bim for tbe amount of bis judgment against Pearson.

Tbe defendant denied liability to tbe plaintiff, and alleged tbat tbe injuries for wbicb plaintiff recovered damages were • intentionally inflicted by Pearson; tbat tbe policy of insurance did not cover liability for injury intentionally inflicted by tbe insured; and defendant set up tbe judgment in Jaclcson v. Scheiber, 209 N. C., 441, wherein plaintiff’s suit against Scheiber for tbe same injury was dismissed on tbe ground tbat plaintiff’s own evidence showed an intentional injury, and defendant alleged tbat, it having been judicially determined tbat plaintiff was not entitled to recover of tbe owner of tbe automobile, tbe named insured, because tbe injury was due to tbe willful and intentional act of Pearson, tbe driver, plaintiff was estopped to maintain this action.

Tbe policy of insurance offered in evidence stated tbe insuring agreement to be: “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,” and tbe policy contained tbe following provision: “Tbe insurance provided by this policy is hereby made available ... to any person operating . . . any of tbe automobiles described, . . . provided tbe use and operation thereof are with tbe permission of tbe named assured; . . . provided further, insurance payable under this policy shall be applied by tbe company first to tbe protection of tbe named assured, and tbe remainder, if any, to tbe protection of others entitled to insurance under tbe provisions and conditions of tbe insuring agreement as tbe named assured shall in writing direct.”

Plaintiff’s complaint in bis former action against Scbeiber and Pearson contained tbe following allegations: “Tbat, as tbe plaintiff is informed and believes, tbe acts of tbe defendant in driving tbe said Chrysler automobile into tbe plaintiff and in thereafter carrying bim in a helpless and unconscious condition for a distance equal to tbe length of a city block, as aforesaid, were! willful, wanton, and reckless, and in conscious and criminal disregard of and indifference to tbe personal and property rights of others, and particularly of tbe plaintiff.”

Plaintiff offered tbe judgment rendered in bis favor and against Eobert Pearson, and tbe verdict of tbe jury tbat be was injured by tbe negligence of Pearson and damaged in tbe sum of $300.

Tbe only oral evidence offered by plaintiff was tbat of witness George F. Scbeiber, who testified tbat on tbe occasion alleged Pearson drove tbe automobile on an errand for bim. Scbeiber further testified tbat be beard tbe plaintiff, John Ben Jackson, testify in tbe former case tbat be would swear Pearson ran into bim on purpose, tbat be (Jackson) bad previously shot at Pearson, and tbat be beard Pearson say after tbe *548occurrence tbat be intended to run oyer him and would do it again if be bad a ebance.

Tbe witness Scbeiber further testified tbat shortly after tbe accident Robert Pearson left tbe city, tbat be was not present at either trial, and tbat witness bad endeavored to locate him without success.

Thereupon plaintiff rested bis case. Defendant’s motion for judgment of nonsuit was sustained, and from judgment dismissing the action plaintiff appealed.

G. II. Gover, William T. Covington, Jr., and Hugh L. LobdeTl for plaintiff.

Robinson & Jones for defendant.

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.

*549In 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.