Marple

Respondents first recovered judgment against Jay H. Merrill for the death of their son, Robert, Jr., caused by the negligent operation of an automobile in which he was riding while driven by the son of said Merrill. An execution on said judgment having been returned unsatisfied, respondents next commenced this action against appellant, the insurance carrier for said Merrill. Judgment was for respondents against the appellant insurance company.

Appellant claims first that the record in the first suit against Merrill shows that the judgment against him was not given upon the theory of respondeat superior, but because of a liability assumed by Merrill by contract in and by his signing the application of his minor son to obtain an operator’s license to drive the automobile. We shall treat the point as though the judgment was not based upon the doctrine of respondeat superior.

The policy of insurance insured said Merrill, section II, “Against direct loss and expense arising or resulting from claims upon the assured for damages by reason of the ownership, maintenance, manipulation or use of (the automobile in question) ... if such claims are made on account of (Clause A) “Bodily…