Luger v. Windell

• Decision Date: 22 July 1921
• Docket Number: 16315.
• Citation: 199 P. 760,116 Wash. 375
• Court: Washington Supreme Court
• Parties: LUGER et al. v. WINDELL et al. SAME v. NEW AMSTERDAM CASUALTY CO.

199 P. 760

116 Wash. 375

LUGER et al. v. WINDELL et al.

SAME v. NEW AMSTERDAM CASUALTY CO.

No. 16315.

Supreme Court of Washington

July 22, 1921

Department 1.

Appeal from Superior Court, Spokane County; Bruce Blake, Judge.

J. G Luger and another, having recovered judgment against J. D Windell and others and the same having been affirmed, served a writ of garnishment against the New Amsterdam Casualty Company. From a judgment holding the Casualty Company liable to plaintiffs it appeals. Reversed.

Danson Williams & Danson and R. E. Lowe, all of Spokane, for appellant.

Fred Miller, of Colfax, and E. Eugene Davis, of Spokane, for respondents.

MACKINTOSH J.

Luger recovered judgments against Windell on account of damages arising from an automobile accident. These judgments were affirmed by this court in Luger v Windell, 110 Wash. 22, 187 P. 407. After the remittiturs had gone down, a writ of garnishment was served on the New Amsterdam Casualty Company, under the claim that it was indebted to, or had property of, Windell in its possession, which should be made to satisfy the judgments. The Casualty company answered, denying any indebtedness. Luger controverted the answer by alleging that the casualty company had issued a policy of insurance upon the Windell automobile. Upon a trial of this issue the lower court entered judgment against the casualty company, holding that the policy of insurance was a liability one, and that consequently the casualty company was liable to Luger. The casualty company appealed from that judgment.

The respondent has moved to dismiss the appeal for the reason that the casualty company has not served Windell with notice of appeal, and that Windell, being an interested party, should have had such notice, and without it this court has not jurisdiction. In Dittenhoefer v. Clothing Co., 4 Wash. 519, 30 P. 660, and Globe Electric Co. v. Montgomery, 85 Wash. 452, 148 P. 596, this court has already held that, where an appeal is taken by a garnishee defendant alone, it is not necessary that notice of appeal should be given to the original judgment defendant. On the authority of those cases the respondent's motion to dismiss the appeal is denied.

The policy wrtten by the casualty company contained the following conditions:

'Condition C: If thereafter any suit is brought against the assured to enforce such a claim for damages, the assured shall immediately forward to such executive office of the company every summons or other process as soon as the same shall have been served on him, and the company will defend such suit, whether groundless or not, in the name and on behalf of the assured; the expenses incurred by the company in defending such suit; including costs, if any, taxed against the assured, will be borne by the company, whether the verdict is for or against the assured irrespective of the limits of liability expressed in the policy. In addition to the payment of expenses and costs as provided herein, the company will reimburse the assured for interest accrued on such part of the amount of the judgment after entry and payment thereof as shall not exceed the limits of liability expressed in the policy. The company shall have the right to settle any claim or suit at any time. * * *

'Condition E: No action shall lie against the company to recover for any loss under or by reason of this policy unless it shall be brought by and in the name of the assured for loss actually sustained and paid in money by the assured in satisfaction of a judgment after actual trial of the issue; nor unless such action is brought within two years after such judgment against the assured has been so paid and satisfied. The company does not prejudice by this condition any defenses to such action as it may be entitled to make under this policy.'

The question in this connection is whether a policy containing such provisions is a liability or an indemnity policy. The provisions quoted are identical in effect, and nearly so in language, with the provisions of the policy considered by this court in Ford v. AEtna Life Insurance Co., 70 Wash. 29, 126 P. 69. The opinion in that case, written by Judge Gose, is a masterly review of the question, upon both reason and authority, and decides that a policy with those conditions is a policy of indemnity, and that a judgment creditor, when his judgment remains unpaid, cannot, by garnishment, compel its payment from the insurance company which had insured the judgment debtor. That decision leaves nothing to be added in support of the conclusion there reached. It establishes the rule by reason, and shows that it is based upon the overwhelming weight of authority. Contrary to the rule there announced are the decisions of but two states, to wit, New Hampshire ( Sanders v. Insurance Co., 72 N.H. 485, 57 A. 655, 101 Am. St. Rep. 688; Lombard v. Maguire-Pennamen Co., 78 N.H. 110, 97 A. 892), and Minnesota ( Patterson v. Adan, 119 Minn. 308, 138 N.W. 281, 48 L. R. A. [N. S.] 184; Standard Printing Co. v. Fidelity & Dep. Co., 138 Minn. 304, 164 N.W. 1022), and it is upon the decisions of those two courts, and the decision in the case of Davies v. Maryland Cas. Co., 89 Wash. 571, 154 P. 1116, 155 P. 1035, L. R. A. 1916D, 395, 398, from this court (which we will hereafter refer to) that the respondent bases his argument in support of the lower court's judgment. The earlier New Hampshire decision was referred to and condemned in the Ford Case, supra. The Minnesota cases must fall under the ban of the same argument, for they are based upon the reasoning of the New Hampshire court.

In addition to the cases cited in the Ford Case in its support...