Board of Trade Livery Company v. Georgia Casualty Company
| Decision Date | 07 November 1924 |
| Docket Number | 24,174 |
| Citation | 200 N.W. 633,160 Minn. 490 |
| Parties | BOARD OF TRADE LIVERY COMPANY v. GEORGIA CASUALTY COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for St. Louis county. From an order overruling its demurrer to the amended complaint, Grannis J., who certified that the question raised was important and doubtful, defendant appealed. Affirmed.
Jitney ordinance of Duluth does not restrict effect of liability policy.
1. The so-called "jitney ordinance" of Duluth requires all licensees to be covered by a certain measure of liability insurance for the benefit of the public. The ordinance is not restrictive and does not limit the effect of a policy procured in compliance therewith, particularly where the policy is so clear as to prevent resort to extraneous aids to construction.
Public liability insurance policy construed as contract of insurance.
2. A public liability insurance policy against loss arising from claims for injuries to person or property is not governed by the law of suretyship, but is to be construed and applied as a contract of insurance.
Defendant liable to plaintiff for judgments for injuries sustained by its passengers.
3. Certain passengers of a navigation company held an excursion ticket entitling them to an automobile ride in Duluth. The ride was taken in an automobile belonging to plaintiff, and pursuant to a contract between it and the navigation company. The passengers were injured by reason of an accident to the automobile. They recovered damages from the navigation company as for a breach of its contract for their safe carriage. The navigation company subsequently recovered the amount of those judgments from plaintiff. Held that the defendant is liable for the amount of such judgments to plaintiff, under a policy of insurance issued by defendant and protecting plaintiff against "loss arising or resulting from claims upon the assured for damages on account of bodily injuries accidentally suffered or alleged to have been suffered."
Warner E. Whipple, for appellant.
Washburn Bailey & Mitchell and M. E. Louisell, for respondent.
Appeal, on a certificate that the questions involved are important and doubtful, from an order overruling a demurrer to a complaint which tells this story: Plaintiff operates a line of automobiles for hire in Duluth, under a license issued by the city, pursuant to a so-called "jitney ordinance" which requires all licensees to carry public liability insurance. With that requirement plaintiff has complied and at the times now in question was protected, within certain limits, by a public liability policy issued by defendant, the material terms of which are hereinafter stated and considered.
During August, 1917, the Northern Navigation Company, which operates a line of passenger steamships between Duluth and other lake ports, landed certain passengers in Duluth. Those now in question will be called the Thurstons. They held excursion tickets issued by the navigation company which entitled them to an automobile ride over Duluth's justly-famed boulevard. The automobile trip was covered by a coupon which was a part of the ticket purchased from the navigation company. The automobile service at Duluth was rendered by plaintiff under contract with the navigation company. While the Thurstons were taking the drive in one of plaintiff's automobiles, an accident occurred resulting in serious personal injuries to them.
The Thurstons resided at Detroit, Michigan, and there they prosecuted to a successful conclusion suits for damages against the navigation company, which was held liable for a breach of its contract for the safe carriage of its passengers. (See Thurston v. Northern Navigation Co. 205 Mich. 278, 171 N.W. 423.) The judgments procured were paid, and thereafter, when plaintiff sued the navigation company in St. Louis county for an admitted balance of account, the latter, on a counterclaim, recovered from plaintiff the amount of the Thurston judgments. Those judgments included not only the damages suffered by the Thurstons, but also the taxable costs and disbursements of the litigation. Defendant was given timely and formal notice of the commencement both of the Thurston cases in Michigan, and the action of the plaintiff against the navigation company in St. Louis county, and was invited to assume the defense.
The complaint sets forth the contract of insurance issued by defendant to plaintiff, and thereon is predicated the demand for judgment in favor of plaintiff for the amount for which it has been held liable to the navigation company on account of the Thurston judgments. The sole question is whether the loss sustained is a damage insured against by the policy.
The issuance of such contracts of insurance is a principal portion of the business for which defendant was organized, and for which it is licensed to do business as a foreign corporation in Minnesota. By this policy plaintiff was indemnified "against loss arising or resulting from claims upon the assured for damages on account of bodily injuries accidentally suffered or alleged to have been suffered, while this policy is in force, including death resulting at any time therefrom, by any person or persons, not employed by the assured, by reason of the ownership, maintenance or use of any of the automobiles" covered by the policy.
There were the usual "exceptions," one of which was any "liability of others assumed by the assured under any contract or agreement, oral or written." The policy provided that no action should be brought against defendant unless to enforce payment by the company (defendant) "of a final judgment rendered after a trial in a suit against the assured for damages."
1. We consider, first, the argument for appellant that the ordinance which required the insurance in question should be taken as so limiting the effect of that insurance that there can be no recovery in the present case, because plaintiff's loss arose from paying the amount of the Thurston judgments to the navigation company instead of to the Thurstons themselves. It seems clear that the Thurstons might have sued plaintiff and recovered judgments against it as they did against the navigation company, and that had they done so defendant would now be liable. Notwithstanding, it is argued that inasmuch as plaintiff did not respond directly to the Thurstons, but instead made payment to the navigation company, the insurance has ceased to apply and plaintiff has no recourse against defendant.
The argument demands resort to the ordinance in construing the policy. It assumes necessarily the premise that there is an ambiguity in the policy which must be removed by construction, and that the ordinance is the first thing to which resort must be had for interpretative aid. The argument of course falls if its necessary premise is unfounded, and the policy itself so clear as to prevent resort to extraneous aids in its application. As will later appear, that is our view, but for the time being we will, with counsel for defendant, assume the contrary, and upon that assumption proceed to an examination of the argument based upon the supposed restrictive effect of the ordinance.
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