Humphrey v. Polski
| Decision Date | 21 November 1924 |
| Docket Number | 24,069 |
| Citation | 200 N.W. 812,161 Minn. 61 |
| Parties | VERA HUMPHREY v. ROMAN F. POLSKI; BELT AUTO INDEMNITY ASSOCIATION, GARNISHEE |
| Court | Minnesota Supreme Court |
Action in the district court for Ramsey county. The facts are given in the opinion. From an order, Sanborn, J. denying her motion for judgment against the garnishee, plaintiff appealed. Affirmed.
Automobile insurer not estopped from denying its liability by defending assured.
The garnishee disclosure of an automobile indemnity insurer does not show that by carrying on the defense for the assured it estopped itself or waived the right to assert nonliability under the policy, which provided that loss of the insured should not be covered if it occurred while, in running the automobile, he was under the influence of intoxicating liquor.
Joseph A. Poirier, for appellant.
Orr Stark & Kidder, for respondent.
Plaintiff appeals from an order denying her motion for judgment against the garnishee upon its disclosure.
It appears from the files that plaintiff recovered a verdict against defendant as damages for injuries received through defendant's negligent operation of an automobile. The disclosure reveals that the garnishee had issued its policy of insurance indemnifying defendant for loss growing out of the operation of the automobile, which policy contains this provision: "This contract does not cover loss resulting or arising from any of the following causes, or while said automobile is being used or maintained under the following conditions: * * * and it does not cover loss or damage or legal liability sustained while * * * said automobile was being operated or driven by any person otherwise covered by the contract, but who was under the influence of intoxicating liquor at the time such loss damage or liability arose." It also appears that shortly after this suit was brought, and after the garnishee had taken charge of the defense, as obligated under the policy, a claim was made that defendant was under the influence of liquor when plaintiff received her injury, and thereupon the garnishee tendered the defense to defendant and advised him that the garnishee refused to proceed with the defense, unless he would agree that so doing should not be a waiver of the right to deny liability upon the policy, in case it appeared that he was in fact driving the automobile at the time in question while intoxicated; that defendant vigorously denied that he was intoxicated, and on that assurance the garnishee continued in the defense, but from admissions made by defendant under oath at the trial and from facts discovered after the trial the garnishee had ascertained that ...
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