Benton v. Associated Indem. Corp., 27123.

• Decision Date: 18 July 1938
• Docket Number: 27123.
• Citation: 81 P.2d 507,195 Wash. 446
• Parties: BENTON v. ASSOCIATED INDEMNITY CORPORATION.
• Court: Washington Supreme Court

81 P.2d 507

195 Wash. 446

BENTON v. ASSOCIATED INDEMNITY CORPORATION.

No. 27123.

Supreme Court of Washington

July 18, 1938

Department 1.

Appeal from Superior Court, King County; Chester A. Batchelor Judge.

Action by Hugh H. Benton, Jr., as trustee in bankruptcy for Earl A Carmody, bankrupt, against the Associated Indemnity Corporation for amount of judgment against insured under public liability policy issued by defendant. From a judgment dismissing the action, the plaintiff appeals.

Affirmed.

Alex Wiley and John J. Kennett, both of Seattle for appellant.

N. A Pearson and Evans C. Bunker, both of Seattle, for respondent.

HOLCOMB Justice.

This case has been twice Before this court, Hinton v. Carmody, 182 Wash. 123, 45 P.2d 32, and the garnishment case brought by the judgment creditor decided in Hinton v. Carmody, 186 Wash. 242, 60 P.2d 1108. The facts and issues may be found in those decisions, and will not be repeated here.

The only additional facts necessary to recite are that after several writs of garnishment had been sued out by Hinton the judgment creditor, as administrator, Carmody, the judgment debtor, went into bankruptcy and this appellant was appointed trustee therein. Immediately after his appointment as trustee he started the present suit against the surety company to attempt collection of the judgment which Hinton had secured against Carmody.

The lower court granted a motion by respondent for a nonsuit and judgment, and dismissed the action. The grounds of dismissal were that appellant was bound by the judgment in the garnishment proceedings in the prior action, 186 Wash. 242, 60 P.2d 1108; and that appellant, as trustee in bankruptcy, had no right to maintain an action.

From a conclusion we reach herein only one error will be necessary to discuss, that the court erred in dismissing the action and not submitting the issues of fact to the jury.

In our decision in 186 Wash. 242, 60 P.2d 1108, this court unanimously decided that an insurance company has a right to provide in its contract under what conditions it will pay and to whom it will pay under these liability policies; that from the language of this policy it covers just the persons named therein and no others.

The writer of this opinion was the author of the minority opinion, which dissent was based upon the sole ground that the surety company concealed its intention to disclaim liability on this specific ground of nonliability under the policy, did not make known to the claimant its real ground of resisting the collection of the judgment and should have been estopped by its course of conduct and concealment.

The policy in this case contains the following clause: 'Bankruptcy clause. Bankruptcy or insolvency of the named insured shall not release the company from the payment of damages for injuries sustained or loss occasioned during the life of this policy and in case execution against the named insured is returned unsatisfied in an action brought by the injured person, or his or her personal representative in case death results from the accident, because of such bankruptcy or insolvency, an action may be maintained by such injured person, or his or her personal representative, against the company on this policy and subject to its terms and limitations for the amount of the judgment in said action, not exceeding the amount of the limits of indemnity provided in this policy; * * *'

There is another clause in the policy which defines 'Insured' and 'Additional Insured,' which were Before us on the former appeal.

Counsel for appellant positively assert that 'this is a suit on a contract; the contract is the insurance policy.' If that be taken at its face value, there is nothing in the contract of insurance in this case that insures the creditors of Carmody, nor does it insure the creditors of the 'named insured.'

Under the bankruptcy clause of the policy the insurer is not released from liability to the injured person for damages for such injuries, and in case an execution against the named insured is returned unsatisfied, an action may be brought 'by the injured person, or his or her personal representative.'

We have consistently held that only the personal representative can bring an action for such damages. Machek v. Seattle, 118 Wash. 42, 203 P. 25; Howe v. Whitman County, 120 Wash. 247, 206 P. 968, 212 P. 164; Reutenik v. Gibson Packing Co., 132 Wash. 108, 231 P. 773, 37 A.L.R. 830; Dodson v. Continental Can Co., 159 Wash. 589, 294 P. 265.

That principle of itself, which is well settled here, would preclude any action by an assignee of the debtor whether voluntarily assigned, or in invitum, by operation of law.

It would be idle to review the many cases cited by appellant upon the question of the right to...