Criss v. U.S. Fidelity & Guaranty Co.
| Decision Date | 10 April 1928 |
| Docket Number | 5988. |
| Citation | 142 S.E. 849,105 W.Va. 380 |
| Parties | CRISS v. UNITED STATES FIDELITY & GUARANTY CO. |
| Court | West Virginia Supreme Court |
Submitted March 13, 1928.
Syllabus by the Court.
Under a liability insurance contract procured in compliance with section 82, chapter 6, Acts 1923, one claiming to have been injured because of the negligent operation of an automobile of the assured cannot proceed against the insurer alone until such claim is liquidated.
Error to Circuit Court, Harrison County.
Action by Thelma Criss against the United States Fidelity & Guaranty Company, by notice of motion for judgment. Judgment for defendant, and plaintiff brings error. Affirmed.
J. E Law, of Clarksburg, for plaintiff in error.
Steptoe Maxwell & Johnson and James M. Guiher, all of Clarksburg, for defendant in error.
This case involves the right of the plaintiff to proceed directly against the defendant, as an insurer, upon an unliquidated claim against defendant's assured. The proceeding in which she would test her demand is a notice of motion for judgment. The notice apprised the defendant that she would move the circuit court for a judgment of $3,000 and costs against it because of injuries received by her in a collision between an automobile in which she was riding and an automobile owned by Nick Naimo; that the latter car was being driven in a negligent manner, and that the collision was occasioned solely by such negligence; that the Naimo automobile was operated for compensation; that, when Naimo secured a license to so operate his automobile, he obtained liability insurance from defendant, and that by reason of that insurance, etc., "a right of action has accrued in favor of the undersigned *** to have and recover of and from you for the injury and damages so sustained."
The insurance was procured in compliance with section 82 of chapter 6 of the Acts of 1923, which forbids the road commission to issue a permit to a taxi operator until he files a bond, or "liability insurance satisfactory to the commission, and in such sum as the commission may deem necessary to adequately protect the *** public." The policy contains the usual assurances of indemnity. It also carries the following "rider," to the satisfaction of the commission:
"It is further understood and agreed that the obligations and promises of said policy shall inure to the benefit and protection of any person sustaining bodily injuries and/or property damage as provided for in said policy, *** and that the said obligations and promises of said policy shall constitute direct liability to such person or persons, whether an action for damages is brought against the named assured alone or jointly with the company."
Like insurance contracts have received the consideration of this court in other cases. We held in Oneal v. Transportation Co., 99 W.Va. 456, 462, 129 S.E. 478, that in directing the road commission to require indemnity insurance from a taxi operator, the Legislature created a new right, but did not provide a new remedy. See, also, Shepherd v. Transportation Co., 100 W.Va. 703, 131 S.E. 548. In Conwell v. Hayes, 103 W.Va. 69, 72, 136 S.E. 604, we further held that the road commission had been delegated no authority to change established procedure. Plaintiff does not question these decisions, but maintains that section 2, chapter 71, Code, sanctions her direct action against the defendant. That section authorizes one to proceed in his own name upon a covenant or promise made by a third party for his sole benefit.
Plaintiff insists that the application of the statute made in Jenkins v. Railway Co., 61 W.Va. 597, 57 S.E. 48, 49 L. R. A. (N. S.) 1166, 11 Ann. Cas. 967, supports her contention. There Jenkins alleged an injury occasioned by the negligence of the railroad company in performing a duty which it had obligated itself to perform for the benefit of a certain group to which he belonged. Here the injuries to plaintiff did not arise because of the negligence of the defendant. It is apparent, therefore, that the decision in the Jenkins Case has no application to this one. The policy under consideration limits the liability of the insurer in case of personal injury to $5,000 in favor of any one person, and limits the total liability for personal injuries in any one accident to $10,000. It restricts the liability of the insurer, in case of injury to property, to the actual amount of the damages, with the provision that in no event shall such liability exceed $1,000 on account of any one accident, irrespective of whether the property of more than one person is damaged or destroyed. The terms of the policy, therefore, classify differently persons suffering personal injuries and persons bearing property loss. In addition to the benefits...
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