Connolly v. Bolster
| Decision Date | 06 January 1905 |
| Parties | CONNOLLY v. BOLSTER et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Whipple, Sears & Ogden, for appellant.
Dickson & Knowles, for appellee.
The plaintiff claims that he is entitled to maintain this bill to reach and apply the debt due from the insurance company to his employer, Bell, first, on the ground that, on the true construction of the policy, the insurance company is indebted at law to his employer in the amount of the judgment which he has recovered against him; and, secondly, that, if the debt is not due at law, his employer has a right in equity to maintain a bill against him for exoneration, and to compel the company to satisfy the judgment directly. On the first ground the plaintiff relies on the case of Sanders v Frankfort Ins. Co., 72 N.H. 485, 57 A. 655. In that case relief was given under similar circumstances on the ground that, as matter of construction of a policy having the same terms, payment of a judgment by the assured was not a condition precedent to a right of action on the policy where the insurance company had undertaken the defense of the claim. By the policy here under discussion, and construed by the court in Sanders v. Frankfort Ins. Co., the company 'agrees to indemnify' the assured 'against loss from common-law or statutory liability for damages on account of bodily injuries' to employés, caused by the negligence of the assured, 'subject to the following special and general agreements.' The second, third, and eighth clauses of the general agreements are the material ones. The second and third and the material part of the eighth clauses are as follows:
'(2) If thereafter, any suit is brought against the Assured to enforce a claim for damages on account of an accident covered by this policy immediate notice thereof shall be given to the Company, and the Company will defend against such proceeding in the name and on behalf of the Assured, or settle the same at its own cost, unless it shall elect to pay to the Assured the indemnity provided for in clause A of Special Agreements as limited therein.
'(8) No action shall lie against the Company as respects any loss under this policy, unless it shall be brought by the Assured himself to reimburse him for loss actually sustained and paid by him in satisfaction of a judgment after trial of the issue.'
The conclusion that payment of the judgment recovered by the employé was not a condition precedent to an action on the policy was reached in Sanders v. Frankfort Ins. Co. on these grounds: The word 'defend,' in the second clause means to protect and secure against attack--'in short, to successfully defend'--and therefore included an obligation on the part of the company to pay the judgment if the case defended resulted in a judgment against the assured. That the second clause of the general agreements, so construed, was not consistent with the eighth clause of the general agreements, which stipulates, in terms, that 'No action shall lie against the Company as respects any loss under this policy, unless it shall be brought by the Assured himself to reimburse him for loss actually sustained and paid by him in satisfaction of a judgment after trial of the issue.' That, if the eight clause is construed to cover cases of which the insurance company has assumed the defense, it is issue.' That, if the eighth clause is construed and consequently the eighth clause must be construed not to cover those cases, but to be confined to cases of which the insurance company has not assumed the defense. We are of opinion, however, in the first place, that the word 'defend,' in the second clause, is to have its natural import; that it means here what it means when counsel are retained to defend an action; and that it is not to be extended beyond that, and to mean to 'successfully defend.' In the second place, the second clause is an obligation in addition to the obligation to indemnify the assured against loss, like the suing and laboring clause in a marine policy (as to which see Kidston v. Empire Ins. Co., L. R. 1 C. P. 535, 2 C. P. 357; Atchison v. Lohre,...
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