Conley v. U.S. Fidelity & Guaranty Co.

• Decision Date: 08 November 1934
• Docket Number: 7233.
• Citation: 37 P.2d 565,98 Mont. 31
• Parties: CONLEY v. UNITED STATES FIDELITY & GUARANTY CO. et al.
• Court: Montana Supreme Court

37 P.2d 565

98 Mont. 31

CONLEY v. UNITED STATES FIDELITY & GUARANTY CO. et al.

No. 7233.

Supreme Court of Montana

November 8, 1934

Appeal from District Court, Lewis and Clark County; W. H. Poorman Judge.

Action by Hildah Conley against the United States Fidelity & Guaranty Company and another. From a judgment of dismissal plaintiff appeals.

Affirmed.

E. G Toomey, Carl McFarland, and H. K. Anderson, all of Helena for appellant.

R. F. Gaines, of Butte, for respondents.

ANDERSON Justice.

Plaintiff brought this action to recover damages for personal injuries sustained as a result of the alleged gross and willful negligence in the operation of an automobile by an employee of her husband, Frank Conley, one of the parties defendant. Conley is sought to be held under the doctrine of respondeat superior. The corporation defendant was the insurer under a "public liability" policy of insurance on the automobile in question.

Defendant Conley demurred generally to the complaint. The corporate defendant demurred generally and specially upon the ground of misjoinder of parties defendant. All these demurrers were sustained. The plaintiff failing to amend within the time allowed by the court after the ruling on these demurrers, her default was entered and a judgment of dismissal rendered. The appeal is from this judgment.

Plaintiff by appropriate specifications of error seeks to have the order of the court sustaining the demurrers and the entry of the judgment of dismissal reviewed.

It is conceded that the facts alleged are identical with those appearing in the complaint in the case of Conley v. Conley, 92 Mont. 425, 15 P.2d 922, so far as the plaintiff attempts to state a cause of action against the defendant Frank Conley. It was there held that the complaint did not state a cause of action. The conclusion there reached was under similar facts reaffirmed by this court in the case of Kelly v. Williams, 94 Mont. 19, 21 P.2d 58. This case, in so far as the defendant Conley is concerned, is ruled directly by these decisions, and accordingly the trial court did not err in sustaining the demurrer of the defendant Conley to plaintiff's complaint.

Plaintiff argues that, even though the complaint failed to state a cause of action against the defendant Conley, it nevertheless is sufficient as against the defendant corporation.

It is conceded by the parties hereto that the contract between the defendant Conley and the corporation is one of indemnity. The foundation of plaintiff's argument is section 8168, Revised Codes 1921, providing as follows: "One who indemnifies another against an act to be done by the latter is liable jointly with the person indemnified, and separately to every person injured by such act."

The defendant corporation by the terms of the policy in question undertook "to pay all sums which the assured shall become liable to pay as damages imposed upon him by law for bodily injury, including death at any time resulting therefrom (herein called 'bodily injury'), accidentally sustained by any person or persons if caused by the ownership, maintenance, or use of any automobile disclosed in the declarations for the purposes therein stated." Defendant Conley was the named assured in the policy. Admittedly, plaintiff sustained the injuries complained of while a passenger in the automobile described in the policy while being operated by an employee of the defendant Conley. Plaintiff argues that the effect of section 8168, supra, is to render the defendant corporation jointly and separately liable under this policy provision, so that suit may be maintained against the insurer prior to an adjudication of liability in favor of the plaintiff against the assured defendant.

The policy further provides that "any person or his legal representative who shall obtain final judgment against the assured because of any such bodily injury *** and whose execution against the assured is returned unsatisfied, *** may proceed against the company under the terms of this policy to recover the amount of such judgment either at law or in equity but not to exceed the limit of this policy applicable thereto. Nothing in this policy shall give to any person or persons claiming damages against the assured any right of action against the company except as in this paragraph provided."

This court in the case of Cummings v. Reins Copper Co., 40 Mont. 599, 107 P. 904, 911, had under consideration the provisions of section 8168, supra, then section 5653, Revised Codes 1907. In that case it was attempted to join, as here the assured and the insurance company as parties defendant. The precise question upon which the court passed was whether or not the insurance company, under a contract of indemnity against liability for personal injuries, might be joined as a party defendant with the assured. It was held that such a joinder was not permissible, and the question whether or not the insured might ever be sued separately by the injured person was expressly reserved. The court, however, in the course of its opinion, in order to reach the conclusion there...