Luft v. Factory Mut. Liab. Ins. Co. of Am., s. 6952, 6953.

• Decision Date: 26 June 1931
• Docket Number: Nos. 6952, 6953.,s. 6952, 6953.
• Citation: 155 A. 526
• Parties: LUFT v. FACTORY MUT. LIABILITY INS. CO. OF AMERICA. SMALL v. SAME.
• Court: Rhode Island Supreme Court

155 A. 526

LUFT

v. FACTORY MUT. LIABILITY INS. CO. OF AMERICA.

SMALL

v. SAME.

Nos. 6952, 6953.

Supreme Court of Rhode Island.

June 26, 1931.

Exceptions from Superior Court, Providence and Bristol Counties; J. Jerome Hahn, Judge.

Separate actions by Isador A. Luft and Morris Small against the Factory Mutual Liability Insurance Company of America. Decision for plaintiff in each case, and defendant brings exceptions.

Exceptions sustained.

Walter I. Sundlun and Baker & Spicer, all of Providence, for plaintiffs.

Sidney Clifford and Sherwood, Heltzen & Clifford, all of Providence, for defendant.

MURDOCH, J.

The above-entitled cases were brought to recover damages from the defendant insurance company for injuries sustained in a collision between an automobile in which the plaintiffs were passengers and an automobile owned and operated by William P. Barstow. The collision occurred oh November 6, 1926, in the town of Plainfield, Conn. August 19, 1927, writs were issued against Barstow, who is a resident of the state of Connecticut, and were returned non est inventus. On September 28 of the same year writs were issued against the Automobile Insurance Company of America. Verdicts were directed for said company when it appeared at the trial that it insured Barstow against loss from fire and theft only. Thereafter on April 26, 1929, the writs in the instant case were issued against the present defendant which had insured Barstow against liability for personal injuries. The defendant filed pleas in each case of the general issue and special pleas setting up the statute of limitations.

The cases were tried in the superior court without a jury, and the trial justice gave decision for the plaintiff in each case. The cases are here on defendant's exceptions. The sole question presented for our determination arises from the refusal of the trial justice to sustain defendant's pleas of the statute of limitations.

The plaintiffs brought their actions against the defendant under the provisions of section 7, chapter 258, General Laws 1923, the pertinent part of which is as follows: "Every policy hereafter written insuring against liability for property damage or personal injuries or both * * * shall contain provisions to the effect that the insurer shall be directly liable to the injured party * * * to pay him the amount of damages for which such insured is liable. Such injured party * * * in his suit against the insured, shall not join the insurer as a defendant. If, however, the officer serving any process against the insured shall return said process 'non est inventus,' the said injured party * * * may proceed directly against the insurer. * * *"

Section 1 of chapter 334, G. L. 1923, provides that "actions for injuries to the person shall be commenced and sued within two years next after the cause of action shall accrue, and not after." The accident in which the plaintiffs sustained their injuries occurred November 6, 1926, and the present actions were brought April 26, 1929. If Barstow were the defendant, there would, of course, be no question as to the statute being a bar to recovery. The trial justice ruled that the plaintiffs' rights of action against the defendant did not accrue until the writs against Barstow were returned non est inventus. If this ruling is sustained, the actions are not barred by the statute, as they were brought within two years after the said return.

In Miller v. Metropolitan Cas. Ins. Co. of N. Y., 50 R. I. 166, 146 A. 412," 414, this court, in construing the statute under consideration, said: "In construing the statute the right given to the injured person and the obligation undertaken by the insurance company should both be protected if possible. The aim of the statute as to the injured person was not to place him in a more advantageous position than that of the insured. It was to subrogate him to the right which the insured would have had if he had paid the judgment. * * * It gave the right to the injured person to stand in the place of the insured, but left the insurance company free to contest liability under the policy." It was not the purpose of the statute to impose on the insurer a liability distinct from the liability of the insured to the injured party. The liability of the defendant to the plaintiffs is dependent upon the fact of liability of the insured. If the latter is not liable, the insurer is not liable.

When, as in the instant case, the action is directly against the insurer, the plaintiff must...