Klotzbach v. Bull Dog Auto Fire Ins. Ass'n

• Decision Date: 17 December 1924
• Docket Number: No. 18677.,18677.
• Parties: KLOTZBACH v. BULL DOG AUTO FIRE ASS'N.
• Court: Missouri Court of Appeals

267 S.W. 39

KLOTZBACH v. BULL DOG AUTO FIRE ASS'N.

No. 18677.

St. Louis Court of Appeals. Missouri.

December 2, 1924.

Rehearing Denied December 17, 1924.

Appeal from St. Louis Circuit Court; M. Hartmann, Judge.

"Not to be officially published."

Action by Fred E. Klotzbach against the Bull Dog Auto Fire Insurance Association. Judgment for plaintiff, and defendant appeals. Affirmed.

Kane, Schreiber & Newman and F. H. Bacon, all of St. Louis, for appellant.

James J. O'Donohoe, of St. Louis, for respondent.

BECKER, J.

Plaintiff below recovered judgment against the defendant in an action on a policy of insurance issued by it to him. Defendant in due course appeals.

Plaintiff in his second amended petition avers that the defendant is a voluntary association authorized to do business as an inter-insurance exchange, and that it issued to him a policy, whereby in consideration of a certain premium it agreed, among other things, "to indemnify plaintiff against any and all loss and damages resulting from legal liability as shown under the terms of said policy accruing against plaintiff by reason of bodily injuries or death suffered or alleged to have been suffered by any person or persons by reason of and in consequence of the use and operation of plaintiff's automobile producing said injury or death of one person in the sum of $2,500."

The petition further alleges that by the terms of said policy defendant agreed that

"In addition to the payment of the loss and damages as stated under coverage No. 4, being `property damage,' and No. 5, being `personal injury,' the subscribers at said association do further agree with the subscriber named herein, in relation to said coverage, as follows:

"(a) To defend in the name and on behalf of said subscriber and at the cost and expense of the association all claims, demands, or suits arising under the coverage extended thereunder;

"(b) To pay all actual costs and expenses incurred in any and all such defenses, and to pay all final judgments rendered against said subscriber, wherein same specifically comes within the coverage extended thereunder, but in no case to exceed the maximum limits of liability in this policy provided." (Italics ours.)

The petition further alleges that on the 28th day of April, 1921, Raymond Walage was injured by plaintiff's automobile, and by his next friend recovered a judgment in the circuit court of the city of St. Louis, Mo., against the plaintiff for $6,000, which has become final. The petition also alleges that the defendant defended the suit in behalf of plaintiff, but refuses to pay any part of the final judgment, and prays judgment for the sum of $2,500.

The defendant filed a demurrer to said second amended petition on the ground that the said second amended petition does not state facts sufficient to constitute a cause of action. This demurrer was overruled by the court, and, defendant declining to plead further, judgment was rendered against the defendant for $2,707.50, whereupon defendant appeals.

Appellant claims that the policy in question is one of indemnity against loss, and that Plaintiff cannot maintain an action thereon without showing loss by payment of the judgment; that, if the action is one for damages for a breach of the contract of insurance, the petition fails to show that he has sustained any damage for which he is to be indemnified by defendant.

There is a well-recognized difference between contracts of indemnity against loss and contracts of indemnity...