Indemnity Co. v. Small, Admx.
| Decision Date | 12 June 1930 |
| Citation | 154 Va. 458 |
| Court | Virginia Supreme Court |
| Parties | UNION INDEMNITY COMPANY v. CARRIE H. SMALL, ADMX. |
1. AUTOMOBILE INSURANCE — Liability of Insurer — Necessity of Actual Payment of Judgment Against him by Insured — Acts 1924, Page 504 — Case at Bar. — The instant case was an action by the personal representative of a party injured in an automobile accident against the company issuing a liability policy upon the automobile. Judgment had been recovered by the party injured and execution returned marked "No effects," by reason of the insolvency of the driver of the automobile. The policy contained a provision that there should be no recovery on it unless it should be brought in the name of the assured for loss actually paid in money by the assured in satisfaction of a judgment. Defendant contended that owing to this clause plaintiff could not recover in the instant case, as no money had been paid by the assured in satisfaction of the judgment.
Held: That under Acts 1924, page 504, providing for liability of the insurance company to the person injured in case an execution against the insured is returned unsatisfied because of insolvency, defendant's position was untenable and it was liable.
2. AUTOMOBILE INSURANCE — Liability of Insurer — Necessity of Actual Payment of Judgment Against him by Insured — Acts 1924, Page 504. — Under Acts 1924, page 504, providing for liability of the insurance company to the person injured in case an execution against the insured is returned unsatisfied because of insolvency, whenever it is made to appear that a judgment has been recovered against a party who clearly comes within the provisions of the policy fixing the status of an assured, then the liability of the insurer is definitely fixed, unless, of course, fraud or collusion is shown in the procurement of the judgment.
3. AUTOMOBILE INSURANCE — Liability of Insurer — Conformity of Proof to Pleading — Owner's Permission to Operate Car — Case at Bar. — In an action on an automobile insurance policy the court refused to admit evidence offered by the defendant that the father, the owner of the automobile in question, had refused the driver, his son, permission to use the automobile upon the ground that the evidence was irrelevant and immaterial, under the provision of a clause of the policy, providing that the word "assured" should include any person operating the car with the permission of an adult member of assured's household, and as assured was an adult member of the family he not only had the right to use the automobile without the permission of the assured, but had the right to grant himself such permission.
Held: That this was a misconception of the issues embraced in the pleadings, as there was no specific averment in the declaration that plaintiff based her right of action on the ground that the accident occurred while the son was operating the automobile under permission granted to himself.
4. AUTOMOBILE INSURANCE — Liability of Insurer — Conformity of Proof to Pleading — Owner's Permission to Operate Car — Case at Bar. — The instant case was an action upon an automobile insurance policy. The declaration alleged that one H.C., an adult member of the household of M.P.C., the named assured, did and with the consent and permission of M.P.C. and the consent and permission of one R.C., another adult member of the household, operate the automobile described, andwhile so doing did injure one S. Plaintiff saw fit to ground her right of recovery upon the permission granted H.C. by M.P.C. and R.C., and the question of whether or not H.C. could grant himself permission to operate the automobile of M.P.C. was not involved in the case.
5. PLEADING — Evidence — Plaintiff can Only Recover Upon Case made by the Pleadings. — It is a familiar rule of law that a plaintiff can only recover upon the case made by the pleadings.
6. AUTOMOBILE INSURANCE — Liability of Insurer — Conformity of Proof to Pleading — Owner's Permission to Operate Car — Burden of Proof — Questions of Law and Fact — Case at Bar. — The instant case was an action upon an automobile insurance policy. The declaration alleged that one H.C., an adult member of the household of M.P.C., the named assured, did and with the consent and permission of M.P.C. and the consent and permission of one R.C., another adult member of the household, operate the automobile described, and while so doing did injure one S. Confining the plaintiff to the averments of the declaration, it was the duty of the plaintiff to prove, in consonance with the pleading, that H.C. operated the automobile with the permission of M.P.C. or R.C. To rebut the grant of permission, if so proved, the burden shifted to the defendant. Thereupon, the question in issue became one of fact and should have been submitted to the jury trying the case.
Error to a judgment of the Circuit Court of the city of Portsmouth, in an action of assumpit. Judgment for plaintiff. Defendant assigns error.
The opinion states the case.
Rixey & Rixey, for the plaintiff in error.
S. M. Brandt and Moses Ehrenworth, for the defendant in error.
On the 5th day of October, 1926, W. A. Small recovered a judgment against Hugh Claud for $2,500.00, for personal injuries suffered by Small due to the negligent operation of an automobile by Hugh Claud. Executions issued upon said judgment were returned by the sergeant of the city marked "No effects," by reason of the insolvency of Hugh Claud. Prior to the accident, to-wit, on January 18, 1926, Union Indemnity Company issued to M. P. Claud an automobile liability policy upon a Ford automobile owned by M. P. Claud and used for business and pleasure. The policy contained, among others, the following provisions:
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