Dunn v. Jones
| Citation | 143 Kan. 218,53 P.2d 918 |
| Decision Date | 25 January 1936 |
| Docket Number | 32603. |
| Parties | DUNN et al. v. JONES et al. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
Statute relating to insurance to be furnished by motor carrier held repealed by revision of entire act in which statute appeared and by revision and amendment of statute itself (Rev.St.Supp.1933, 66--1,102, 66--1,128).
Statute requiring filing of insurance policy as condition to issuance by public service commission of certificate or license to motor carrier held to require policy indemnifying against condition of being liable, as distinguished from policy which indemnifies against ultimate established loss, resulting from final enforcement of liability (Rev.St. Supp.1933 66--1,128).
"Liability insurance policy" is a policy of the kind indicated by the qualifying word "liability." "Liable" means bound or obliged by law, while "liability" is the condition of being liable. A "liability insurance policy" is one that indemnifies against the condition of being liable, and such a policy is to be distinguished from one which indemnifies against ultimate established loss resulting from final enforcement of liability.
Obligation of policy filed by motor carrier as required by Public Service Commission, to pay compensation for injury to person and loss of or damage to property, resulting from negligent operation of motor carrier, rests on insurer from time of accident resulting in injury (Rev.St.Supp.1933, 66--1,128).
Motorist who was struck by truck, operator of which had license as motor carrier, held entitled to maintain action directly against insurer of motor carrier's liability policy (Rev.St.Supp.1933, 60--1,128).
If Legislature fails to repeal section of statute which is amended, section is nevertheless repealed (Const.art.2, § 16).
Where motor carrier, to obtain license, filed with Public Service Commission policy indemnifying against loss and policy was approved by commission, insurer held liable as though policy indemnified against liability, since terms of statute were to be read into policy (Rev.St.Supp.1933, 66--1,128).
1. Section 7, c. 206, Laws 1925, appearing as R.S.Supp.1933 66--1,102, relating to insurance to be furnished by a motor carrier, was repealed by revision of the entire act in which it appeared, and by revision and amendment of the section itself by section 21, c. 236, Laws 1931 (R.S.Supp.1933, 66--1,128).
2. Section 21, c. 236, Laws 1931 (R.S. Supp.1933, 66--1,128) requires, as a condition to issuance by the Public Service Commission of a certificate or license to a motor carrier, the filing of an insurance policy indemnifying against the condition of being liable, as distinguished from policy which indemnifies against ultimate established loss, resulting from final enforcement of liability.
3. The obligation of such a policy to pay compensation for injury to person and loss of or damage to property, resulting from negligent operation of the motor carrier, rests on the insurer from the time of accident resulting in injury.
4. The obligation may be enforced by action brought directly against the insurer by the person sustaining injury.
5. To secure benefit of the motor vehicle transportation act, a motor carrier filed with the Public Service Commission a policy indemnifying against loss, and not against liability, certain provisions of which were prescribed by the Public Service Commission. The policy was approved by the Public Service Commission, and the motor carrier obtained benefit of the act. Held, notwithstanding the policy was in form and verbal content a policy indemnifying against loss, the obligation of the insurer was that prescribed by statute, the terms of which are to be read into the policy.
Appeal from District Court, Jackson County; Lloyde Morris, Judge.
Action by Gordon Dunn and others against C. H. Jones and the State Farm Mutual Automobile Insurance Company. From a judgment sustaining second-named defendant's demurrer, plaintiffs appeal.
Reversed and remanded, with direction.
E. R. Sloan, W. Glenn Hamilton, F. A. Sloan, and Eldon R. Sloan, all of Topeka, for appellants.
T. M. Lillard, O. B. Eidson, and Philip H. Lewis, all of Topeka (Benjamin F. Hegler, George Siefkin, and George
B.
Powers, all of Wichita, and Douglas Hudson, of Ft. Scott, of counsel), for appellees.
The action was one by the personal representatives of Edward S. Dunn, deceased, to recover from C. H. Jones damages consequent on Dunn's death, which resulted from injuries inflicted by Jones in negligent operation of a motor truck. Damages were also claimed for injury to Dunn's property in the same accident. Joined with the action against Jones was another against the State Farm Mutual Automobile Insurance Company on a policy of insurance issued to Jones as a contract motor carrier, pursuant to the statute regulating motor carriers. The insurance company demurred to the petition on two grounds: First, misjoinder of causes of action, and this ground was confessed. Second, the action was prematurely brought against the insurance company; cause of action had not accrued for the reason cause of action against Jones had not been established by judgment. The demurrer on this ground was sustained, and plaintiffs appeal. The proceedings against Jones personally are not now material.
The petition alleged that Jones was granted a certificate by the Public Service Commission to engage in the business of contract motor carrier, and as a condition to the granting of his application for a certificate, Jones filed with the Public Service Commission the policy sued on, which was accepted by the Public Service Commission. The petition further alleged that Jones was operating a motortruck on a state highway, pursuant to the permit, that Dunn was driving an automobile on the highway, and that Jones negligently operated the truck in such a manner that the truck struck the automobile, wrecked it, and fatally injured Dunn. A copy of the policy was attached to the petition.
The policy protected Jones against legal liability resulting from accident by reason of ownership or use of the truck, on account of injury to or the death of one person, and on account of injury to property. The policy, however, expressly provided that no action to recover for any loss covered by the policy, arising or resulting from claim upon Jones for damages, should be sustainable, unless by Jones, and after the amount of damages for which he might be liable had been determined, either by final judgment against him, or by agreement by Jones and the claimant, with the company's assent.
The policy bore an indorsement, duly executed by the insurance company, which was made part of the policy. The form of indorsement was prescribed by the Public Service Commission, pursuant to its power to make rules governing motor carriers. R.S. 1933 Supp. 66--197. The indorsement enlarged liability of the insurance company by permitting action against the insurance company by one sustaining injury covered by the policy, on failure of the insurance company to pay any final judgment for such injury. The result is, the policy permitted action by plaintiffs against the insurance company, but only on default of the insurance company to pay any judgment recovered by plaintiffs against Jones.
The Public Service Commission may not make any rule regulating motor carriers contrary to the statute, and we are remitted to the statute to ascertain what kind of insurance policy a motor carrier must provide.
In 1925, the Legislature passed an act, Laws of 1925, c. 206, the title of which reads:
"An Act providing for the supervision, regulation and conduct of the transportation of persons, freight and property for hire over the public highways of the state of Kansas by motor vehicles; conferring jurisdiction upon the public utilities commission to license and regulate such transportation; providing for the enforcement of the provisions of this act and for the punishment for violations thereof; and repealing all acts inconsistent with the provisions of this act."
The substantive portion of the act consisted of eleven sections and dealt with motor carrier transportation on public highways, to the extent regulation of that kind of traffic had developed at that time. Section 7 (Rev.St.Supp. 1933, 66--1,102) reads:
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