Conwell v. Hays
| Decision Date | 25 January 1927 |
| Docket Number | (C. C. Nos. 389, 391.) |
| Citation | 136 S.E. 604 |
| Court | West Virginia Supreme Court |
| Parties | CONWELL. v. HAYS et al. KELL. v. COELLIS et al. |
(Syllabus by the Court.)
Cases Certified from Circuit Court, McDowell County.
Action by Mary Conwell, administratrix, against Vance Hayes and another, and action by Nellie K. Kell against Joe Coellis and another. A demurrer to declaration was sustained in each case, and the trial court certified its rulings. Rulings affirmed.
Froe, Capehart & Miller, of Welch, for plaintiff Conwell.
Sanders, Crockett, Fox & Sanders, of Blue-field, for plaintiff Kell.
Joseph M. Crockett, of Welch, for defendants.
HATCHER, P. [1] Vance Hays and Joe Coellis, defendants, respectively, in the above suits, are taxi drivers who have each secured from the state road commission of West Virginia certificates of convenience, authorizing the operation of automobiles for hire. In compliance with the requirements of Class H, § 82, c. 17, Acts of the West Virginia Leg islature, Regular Session 1925, each of the above defendants filed with the commission a liability insurance policy, issued by the defendant United States Fidelity & Guaranty Company. Each of the above suits was instituted to recover damages for injury from the alleged negligent operation of the assured's taxi. A demurrer to the declaration in each case was sustained by the circuit court of McDowell county, and each case certified here for our decision on the same proposition, to wit, may the company be made a joint defendant with the assured in these cases?
The above-mentioned policies are in the same form as the policy under consideration in the case of O'Neal v. Trans. Co., 99 W. Va. 456, 129 S. E. 478. Because of that decision, counsel for the respective plaintiffs admit that the company is not primarily liable to the plaintiffs under the general provisions of the policies, or by reason of chapter 17, supra. They defend their pleading, however, by a rider termed "Automobile Indorsement No. 130, West Virginia Compulsory Insurance, " which is attached to each policy and which is as follows:
"It is further understood and agreed that the obligations and promises of said policy shall inure to the benefit and portection of any persons sustaining bodily injuries and/or property damage so provided for in said policy, or in the event of the death of such person to the benefit and protection of the person or persons entitled under the law of the state having jurisdiction to maintain an action for damages and that the said obligations and promises of said policy constitute a direct liability to such person or persons whether an action for damages is brought against the named assured alone or jointly with the company."
A like form of indorsement was attached to the policy in the O'Neal Case; but owing to the fact that it had not been countersigned by an authorized agent of the insurance company, it was not treated as a part of the policy, and its effect on the question of joinder of the defendants was not determined. See opinion, 99 W. Va. 465, 466, 129 S. E. 478. In the present cases each indorsement is properly signed and countersigned by the representatives of the company, and is therefore a part of the policy to which it is attached.
Counsel for the company cite as conclusive the O'Neal Case and other cases denying the right to join the insured and the insurer in an action for damages. The reasons commonly advanced in those cases are, that no privity of contract exists between the injured party and the insurance company; that it has made no promise to him, and has assumed no obligations for his benefit. In the extensive annotation to this line of cases, 7 A. L. R. 1003, the learned author states that the inclusion of a provision in the contract of in-surance or indemnity that it should inure to the benefit of an injured party, "would seem to eliminate the...
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