Davison v. Maryland Cas. Co.
| Decision Date | 11 January 1908 |
| Citation | 83 N.E. 407,197 Mass. 167 |
| Parties | DAVISON v. MARYLAND CASUALTY CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
M. O. Garner, for appellant.
H. E Bolles and H. M. Channing, for appellee.
The contract here sued on is one to 'indemnify' the plaintiff 'against loss from common-law or statutory liability for damages on account of bodily injuries * * * caused through the negligence of the assured,' etc. What is meant by the words 'against loss' is described in article 8 of the conditions precedent to which the insurance is stated to be subject. Article 8 provides that no action shall lie for 'any loss,' unless brought 'to reimburse' the assured 'for loss actually sustained and paid by him in satisfaction of a judgment after trial of the issue.' By special agreement A, 'the company's liability for an accident resulting in injuries to * * * one person is limited to five thousand dollars.'
The result of these provisions is that the plaintiff was to be reimbursed for sums paid by him, not exceeding $5,000, on judgments recovered after a trial founded on accidents described in the policy. See Connolly v. Bolster, 187 Mass. 266, 72 N.E. 981, and cases there cited.
The first argument of the plaintiff's counsel in support of the ruling made in the court below is that interest accruing on the verdict included in the judgment is a part of the expense of litigation which is to be borne by the defendant under article 2 of the conditions precedent. The article provides that the company will 'defend against such proceeding in the name and on behalf of the assured, or settle the same at its own cost.' Doubtless the defendant must pay all expenses of the defense of the action against the insured, whether the words 'at its own cost' qualify the verb 'defend' or are to be limited to the words 'settle the same.' But this article is not put in to add to the indemnity to which the plaintiffs are entitled. It is manifestly inserted to describe the terms on which the defense of the action which is given to the company for its own benefit by articles 2 and 3 is to be conducted. See, in this connection, Connolly v. Bolster, 187 Mass. 266, 270, 72 N.E. 981.
The next argument put forward by the plaintiff's counsel is that the effort made to upset the verdict for $5,000 was made in the interest of the defendant alone; that the plaintiff had nothing to gain from it, and as matter of fact he remonstrated against the case being carried further. Unless the words in article 2 of the conditions precedent 'in the name and on behalf of the insured' are to be construed to require the defendant, in conducting the defense of the action brought against the assured, to consult the interest of the assured to the prejudice of its own interests in case of a conflict between the two, this argument cannot prevail; and we are of opinion that these words cannot be given that construction. Take for example the possibility suggested by the plaintiff's counsel in connection with the defendant's determination to carry the exceptions in the case at bar to this court. If the defendant had been successful in getting the verdict of $5,000 set aside, the jury, on...
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