Combs v. Hunt (ga. Cas. Co

• Decision Date: 18 December 1924
• Citation: 125 S.E. 661
• Parties: COMBS. v. HUNT (GEORGIA CASUALTY CO., Garnishee.)
• Court: Virginia Supreme Court

125 S.E. 661

COMBS.

v.HUNT (GEORGIA CASUALTY CO., Garnishee.)

Special Court of Appeals of Virginia.

Dec. 18, 1924.

Error to Court of Law and Chancery of City of Norfolk.

Action by Helen S. Combs against Arthur Hunt and the Georgia Casualty Company, garnishee. Judgment for garnishee, and plaintiff brings error. Reversed and rendered.

Page, Page & Page, of Norfolk, for plaintiff in error.

Garnett, Taylor & Edwards, of Norfolk, for defendants in error.

CRUMP, P. [1] In this case Helen S. Combs, the plaintiff in error, on the 17th day of December, 1921, recovered a judgment against Arthur Hunt for $6,214 in her action against Hunt for injuries sustained by her as the result of a collision of an automobile in which she was riding, caused by the negligent operation of Hunt's automobile. An execution issued on this judgment December 19, 1921, and was returned no effects at the first February rules, 1922. On the 17th day of March, 1922, an alias execution was issued returnable to the first Monday in June following. Under this latter execution, and by reason of a suggestion of liability made by the plaintiff under section 6509 of the Code of Virginia, a process of garnishment was served on the Georgia Casualty Company as garnishee, which secured to the plaintiff the benefit of her execution lien upon intangible personal property, under section 6501 of the Code, although incapable of being levied on. The garnishee answered the summons in writing, which was rejected by the trial court as an insufficient disclosure, and thereupon the jury was sworn to try the issue arising as to whether there was a debt due by the garnishee to the judgment debtor which was subject to the lien of the execution. Upon this trial the defendant garnishee demurred to the evidence, and the jury ascertained the amount to be $5,732, subject to the ruling of the court on the demurrer. Subsequently the court sustained the garnishee's demurrer to the evidence and entered judgment accordingly, to which judgment a writ of error was allowed the plaintiff. Hunt, the judgment debtor, held an indemnity policy issued to him by the Georgia Casualty Company by which the company insured him against loss arising from claims against him by any one injured by him in the operation of his automobile, and also covering damages to his automobile occurring from accidental collision with any other automobile. In order to hold the garnishee liable it must be shown that there was a present fixed liability upon it to pay the assured for the loss insured against. If the evidence established the fact that the judgment debtor had no right to demand payment of the casualty company under the terms of the policy, then the trial court properly held that there was no liability on the garnishee. Freitas v. Griffith, 112 Va. 343, 71 S. E. 531; Boisseau v. Bass, 100 Va. 207, 40 S. E. 647, 57 L. R. A. 380, 93 Am. St. Rep. 956.

This liability might arise from that portion of the policy covering the loss sustained by reason of the personal injuries for whichthe plaintiff recovered her judgment, and also from the separate insurance agreement covering damage to the automobile of the judgment debtor caused by collision with another automobile.

The first question presented to this court, upon the assignment of errors, is whether the evidence before the trial court was insufficient to establish a valid and existing claim on the part of the judgment debtor against the casualty company for the loss occasioned to him by the recovery of the judgment against him in favor of Mrs. Combs.

The material parts of the policy necessary to a determination of this question are as follows:

"Georgia Casualty Company hereby agrees in consideration of the premium and of the statements contained in the schedule hereinafter set forth, which statements the assured makes and declares to be true by the acceptance of this policy, to indemnify the assured designated in the schedule 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" (the automobile owned by Hunt).

"Subject to the following conditions, which are to be construed as conditions precedent:

"Reporting Accidents and Claims.

"A. Upon the occurrence of an accident covered by this policy the assured shall give immediate written notice thereof with the fullest information obtainable at the time, to the company or its duly authorized agent. If a claim is made on account of such accident, the assured shall give the notice thereof with full particulars. The assured shall at all times render to the company all co-operation and assistance in its power.

"Report and Defense of Suits.

"B. If suit is brought against the assured to enforce a claim for damages covered by this policy he shall immediately forward to the company every summons or other process as soon as the same shall have been served on him, and the company will, at its own cost, defend such suit in the name and on behalf of the assured.

"Co-operation of Assured. Expense.

"C. The assured, whenever requested by the company, shall aid in effecting settlements, securing information and evidence of witnesses, and in prosecuting appeals, but the assured shall not voluntarily assume any liability or in terfere in any negotiation for settlement, or any legal proceeding, or incur any expense, or set tie any claim, except at his own cost, without the written consent of the company previously given, except that the assured may provide at the company's expense such immediate surgical relief as is imperative at the time of the accident.

"Assured's Right of Recovery.

"D. No action shall be brought against the company under or by reason of this policy unless it shall be brought by and in the name of the assured for a loss, defined hereunder, after final judgment has been rendered in a suit, described hereunder, and within ninety days from the date of such judgment, to wit, for loss that the assured has actually sustained by the assured's payment in money (a) of a final judgment rendered after a trial in a suit against the assured for damages; (b) of the expense (excluding any payment in settlement of a suit or judgment) incurred by the assured in the defense of a suit against the assured for damages. The company does not prejudice by this condition any defense against such action that it may be entitled to make under this policy."

It is established by the evidence that upon the trial of the action for damages against Hunt the casualty company, through its attorneys, assumed entire charge of the defense, and upon the rendition of the judgment had a suspending order entered; but no suspending bond was given and no appeal taken. It is further shown that the defendant, Hunt, had not paid the judgment; nor was the judgment satisfied except to the extent of the payment of $482 realized upon a sale of the defendant's automobile, which had been impounded and sold. Under these circumstances it is contended on behalf of the casualty company that there was no indebtedness due the assured; that the stipulation in clause D of the policy, commonly known as the "no action" clause, defining the loss against which the company insures, or for which it contracts to indemnify the assured by reimbursing to him money actually paid by him in satisfaction of the judgment and for expenses of the trial, is plain and unambiguous, and requires no aid of construction to ascertain its meaning; that payment of the judgment by the assured is a condition precedent, and must be shown before any claim for loss can accrue under the policy.

It is insisted on the other hand by the plaintiff in error that because the casualty company took sole charge of the defense of the case to the exclusion of the assured, as it had a right to do under the policy, it should be held responsible for the result, notwithstanding the "no action" clause, and that the judgment in the action against the assured became a liability or debt owing unconditionally by the company to the assured, which the plaintiff could subject to her judgment by garnishment.

The use of the automobile has become universal in this country, and automobile accidents occur so frequently that they may be said, like the poor, to be always with us. Naturally automobile owners and users have sought protection by insurance against damages they may have to pay. Doubtless the policies issued for this purpose vary in their terms and conditions, and, as is the case withother contracts, the meaning of each policy must be determined by the language which the parties have chosen to express their agreement. It is well settled, however, that in considering an insurance contract, and in seeking to ascertain the intent of the parties, the court will take cognizance of the fact that the policy is prepared by the insurance company and is apt to contain stipulations and conditions, at times complicated and of doubtful meaning, placed in the contract for the protection of the company, and therefore the court will in cases of ambiguity lean to a construction most favorable to the assured; still, primarily an insurance contract like other contracts must be construed in accordance with its terms; its plain meaning must be given effect; courts cannot make contracts for parties. Phœnix Ins. Co. v. Shulman, 125 Va. 281, 99 S. E. 602; Norfolk Fire Ins. Co. v. Talley, 112 Va. 413, 71 S. E. 534, Ann. Cas. 1913B, 806.

The policy in the instant case is on its face an indemnity contract, having for its purpose to indemnify the assured against loss arising from claims made against him for damages to others injured by him while operating his car, without further specific definition, in the opening statement of the policy showing its general...