Elliott v. Indem. Ins. Co. of N. Am.
| Citation | 201 Wis. 445,230 N.W. 87 |
| Parties | ELLIOTT v. INDEMNITY INS. CO. OF NORTH AMERICA. |
| Decision Date | 01 April 1930 |
| Court | United States State Supreme Court of Wisconsin |
OPINION TEXT STARTS HERE
Appeal from an order of the Circuit Court, for Fond du Lac County; C. F. Van Pelt, Circuit Judge.
Action by Mae Elliott against the Indemnity Insurance Company of North America. From an order overruling a demurrer to complaint, defendant appeals.--[[[By Editorial Staff.]
Affirmed.
Action begun September 26, 1929; order entered October 23, 1929.
This is an appeal from an order overruling the demurrer of the defendant to the complaint of the plaintiff.
Action begun to recover damages for injuries to the plaintiff received in an automobile accident. The action is brought against the insurance carrier, without joining the owner and driver of the car. Plaintiff was the guest of such owner, and driver of the car.
The complaint alleges: That the owner and driver of the car was negligent and that the plaintiff's injuries and damages were the result of such negligence; that at the time of the commencement of this action the owner was dead, and that his estate was insolvent; that the owner was insured with the defendant company, and a copy of the policy is attached to the complaint and made a part thereof.
The defendant demurred on the ground that it appeared on the face of the complaint: (1) That there was a defect of the parties defendant, and (2) that the complaint did not state facts sufficient to constitute a cause of action. The demurrer was overruled on both grounds, and the defendant appeals.Shaw, Muskat & Sullivan, of Milwaukee (John S. Barry, of Milwaukee, of counsel), for appellant.
Martin & Kelley, of Fond du Lac, for respondent.
The policy of insurance is made a part of the complaint, and its terms are admitted by the demurrer. The policy contains these provisions: An agreement that the company will pay any loss by reason of the liability of the assured up to $10,000 for bodily injuries or death resulting therefrom, to one person; the company will defend in the name and on behalf of the assured all claims or suits for such injuries for which the assured is liable; and it will pay all court costs taxed against the assured in any such suit.
It is provided: That the assured must promptly notify the company in writing of any accident covered by the policy; forward to the company every process, pleading or paper of any kind relating to any and all claims or suits; at all times render to the company all co-operation and assistance in his power, and, whenever requested, shall aid in securing information and evidence and the attendance of witnesses, and in prosecuting appeals; make no settlement of any claim arising under the policy without the written consent of the company, except for immediate surgical relief.
It is also provided: That the company may settle any claim at its own cost at any time; if the terms of the policy conflict with the law of any state in which coverage is granted, such conflicting terms shall be inoperative; any specific statutory provision shall supersede any conflicting provision in the policy; in case of payment by the company, the company shall be subrogated to the rights of the assured to that extent; in case of bankruptcy or insolvency of the assured, the company shall not be released from payment of such indemnity as would have been payable but for such bankruptcy or insolvency; by virtue of section 85.25, Stats. 1927, the policy contains the following provision: “That the insurer shall be liable to the persons entitled to recover for the death of any person, or for injury to person or property, caused by the negligent operation, maintenance, use or defective construction of the vehicle described therein, such liability not to exceed the amount named in said bond or policy.”
It will be seen that to all intents and purposes the insurance company is the real party defendant in interest. It has absolute control of any claims or suits arising against the owner of the car covered by the policy. It assumes, up to the limits in the policy, all liability of the owner of the car by virtue of an accident. The only interest the owner has,...
To continue reading
Request your trial
-
Zieman v. U.S. Fid. & Guar. Co. of Balt., Md.
...112 N. E. 433;Verducci v. Casualty Co., 96 Ohio St. 260, 117 N. E. 235;Green v. Martin, 222 Ala. 356, 132 So. 882;Elliott v. Indemnity Ins. Co., 201 Wis. 445, 230 N. W. 87; 32 C. J., 1162. The contract is one of liability insurance. 36 C. J. 1057; 32 C. J. 975. The purpose of subdivision 5,......
-
Zieman v. United States Fidelity & Guar. Co. of Baltimore, Maryland
... ... the liability attaches to the insured. Klotzbach v. Bull Dog ... Auto Fire Ins. Assn., (1924) (Mo. App.) 267 S.W. 39." ... A still ... more recent textbook ... Casualty Co. (Ohio), 117 N.E. 235; Green v. Martin ... (Ala.), 132 So. 882; Elliott v. Indemnity Ins ... Co., 230 N.W. 87; 32 C. J., 1162 ... The ... contract ... ...
-
Campbell v. Gruttemeyer
...in an action brought against the insurance company alone, but a cause of action against the insured must exist. See Elliott v. Indemnity Ins. Co., 201 Wis. 445, 230 N.W. 87, and cases hereinafter 'We therefore conclude that the rule of the Wick case should be applied to situations such as i......
-
Burling v. Schroeder Hotel Co.
...insurer from the payment to the plaintiff of his damages for the injuries sustained by him.” To the same effect, see Elliot v. Indemnity Ins. Co., 201 Wis. 445, 230 N.W. 87;Merchants' Mutual Automobile Liability Ins. Co. v. Smart, 267 U.S. 126, 45 S.Ct. 320, 69 L.Ed. 538;Foust v. Munson S. ......