C. H. Elle Construction Co., a Corporation and St. Paul-Mercury Indemnity Co., a Corporation v. Western Casualty and Surety Company, a Corporation

Appellant St. Paul-Meeury Indemnity Co., an insurer of appellant Elle Construction Co., paid a judgment rendered against said company by an Idaho State Court. In the instant action St. Paul-Mercury is attempting to recover from Western Casualty and Security Co., hereafter Western, the amount it paid on the judgment.

The factual background follows. A Mr. Horsley, an employee of Elle Construction Co., while driving a truck belonging to a Mr. Gogan, and then and there being on Elle Construction Co. business collided with a vehicle driven by a Mr. Campbell who died as a result of injuries received in said collision. Campbell’s widow and children sued Elle Construction Co., Horsley and Gogan and secured a judgment against Elle Construction Co. and Horsley. Gogan was exonerated on the basis of a finding by the jury that he had not given Horsley permission to drive the truck within the meaning of an Idaho Statute imputing negligence to the owner of a car when it is being driven with his permission. Idaho Code § 49-1004 .

The policy issued by Western to Gogan contained a so called “omnibus clause” which covered anyone driving the truck with the owner’s permission as a named insured and…