Chase v. United States Fid. & Guar. Co. Harding

• Decision Date: 03 May 1945
• Court: Rhode Island Supreme Court
• Parties: CHASE v. UNITED STATES FIDELITY & GUARANTY CO. HARDING v. SAME.

42 A.2d 488

CHASE

v.UNITED STATES FIDELITY & GUARANTY CO.

HARDING

v.SAME.

Supreme Court of Rhode Island.

May 3, 1945.

Exceptions from Superior Court, Providence and Bristol Counties; Jeremiah E. O'Connell, Presiding Justice, and Philip C. Joslin, Judge.

Separate actions by Howard R. Chase, Jr., and by Donald I. Harding, against the United States Fidelity & Guaranty Company as an insurer allegedly liable because of injuries to plaintiffs resulting from operation of an automobile by a third person with permission of the named insured. Defendant's demurrer to the declaration in each case was overruled, and plaintiffs' demurrers to defendant's special plea were sustained, and defendant brings exceptions. On motion by plaintiff in each case to dismiss the bill of exceptions as prematurely brought.

Motion in each case granted and cases remitted.

Raymond E. Jordan, of Providence, for plaintiffs.

Francis V. Reynolds, of Providence, for defendant.

BAKER, Justice.

Heard on plaintiff's motion in each case to dismiss the defendant's bill of exceptions therein.

In these two cases, which grow out of the same occurrence, the pleadings and the issues raised are identical and the two bills of exceptions are similar in form. We shall, therefore, for convenience consider the two cases as one and make our references to the pleadings accordingly.

The defendant's bill of exceptions contains only two exceptions, the first to a decision of a justice of the superior court overruling its demurrer to the plaintiff's declaration; and the second to a decision of another justice of such court sustaining the plaintiff's demurrer to the defendant's special plea. The plaintiff's contention is that the bill of exceptions is prematurely brought and that it should be dismissed.

The plaintiff's action to recover damages is brought under the provisions of General Laws 1938, chapter 155, as amended, directly against the defendant as an alleged insurer, the plaintiff, an injured person, having secured an unsatisfied judgment against the alleged insured. In substance the plaintiff's declaration sets out the recovery of such a judgment against one John McKenzie who, on November 9, 1941, was operating an automobile belonging to Thomas P. Carr with the latter's permission, and while so operating such automobile negligently injured the plaintiff. The declaration further alleges that on said date there was in full force and effect a certain policy of insurance issued by the defendant to Thomas P. Carr; that by the terms thereof any person, using with his permission the automobile described in the policy, was insured against legal liability for personal injury resulting to others from the operation thereof; and that therefore the said McKenzie was covered by such policy.

To this declaration the defendant demurred on several grounds, relying chiefly on the ground that the action could not be maintained because it was set out in the declaration that the judgment was secured not against the insured alone but against an alleged agent of the insured, and that, therefore, and action did not come within the provisions of chap. 155, supra. A justice of the superior court overruled this demurrer, holding that, although not a named insured, from the allegations of the declaration McKenzie appeared to be one of a class covered by the policy, and thus within the terms of the above-mentioned statute.

The defendant then filed the general issue and a special plea which set out in substance that at the time when the alleged judgment was obtained by the plaintiff against McKenzie the latter was a minor; that no guardian ad litem was appointed by the court to protect his interest and conduct his defense; that plaintiff's counsel took no steps to have such a guardian appointed; and that the judgment was obtained by default and is voidable or void. To this plea the plaintiff demurred on several grounds and the demurrer was sustained by a justice of the superior court, apparently on the theory that the defendant should not be permitted to attack the judgment collaterally.

To this decision the defendant excepted and duly gave notice of its intention to prosecute the present bill of exceptions, in which it included its above-mentioned exception and also one to the earlier decision overruling its demurrer to the plaintiff's declaration. In disposing of the questions before us we will assume, without deciding, that the above inclusion of the defendant's first exception in its present bill of exceptions is proper. Further, our opinion is necessarily limited to a decision upon the plaintiff's motion to dismiss the bill of exceptions on the ground that it is prematurely brought. We do not consider and we make no finding upon the merits of the exceptions themselves.

...