Marley v. Bankers' Indem. Ins. Co., 7249.
| Citation | 166 A. 350 |
| Decision Date | 22 May 1933 |
| Docket Number | No. 7249.,7249. |
| Parties | MARLEY v. BANKERS' INDEMNITY INS. CO. |
| Court | Rhode Island Supreme Court |
Exceptions from Superior Court, Providence and Bristol Counties; Hugh B. Baker, Presiding Justice.
Action by Helen F. Marley against Bankers' Indemnity Insurance Company. Verdict for plaintiff, and defendant brings exceptions.
Exceptions overruled, and case remitted for entry of judgment.
Edward H. Ziegler and Aram A. Arabian, both of Providence, for plaintiff.
Fergus J. McOsker, of Providence, for defendant.
This is an action of debt on judgment it was tried by a justice of the superior court and decision was for the plaintiff for the full amount of her claim. The case is here on defendant's exceptions: (1) To the overruling of its demurrer and plea in abatement; (2) to the admission of testimony; and (3) to the decision. The exceptions to the admission of testimony not having been argued either orally or on the brief are deemed to have been waived.
The plaintiff, some time in May, 1931, was injured in a collision between two automobiles, one of which was being driven by Beatrice Cohen, against whom the plaintiff brought suit. After trial before a justice of the superior court, sitting without a jury, a decision was rendered in favor of the plaintiff.
Beatrice Cohen was insured by the defendant Bankers' Indemnity Insurance Company against liability for injuries to third persons arising out of the operation of her automobile, and said company undertook the defense of plaintiff's original action. The present suit is based on a provision of section 7, chapter 258, G. L. 1923, which is as follows: "* * * Said injured party, or, in the event of his death, the party entitled to sue therefor, after having obtained judgment against the insured alone, may proceed on said judgment in a separate action against said insurer."
Defendant contends that the action should have been trespass on the case. The plaintiff's right to maintain an action against the defendant is purely statutory. The statute creates a contractual obligation the enforcement of which does not exactly fit into any of the common-law actions. In our opinion trespass on the case is the appropriate action to enforce the right given by the statute. It is clear that debt on judgment is not the proper form of action for the reason that if a case brought under such action were strictly tried the defendant would be precluded from setting up defenses it might have to its liability under the policy. The defendant was allowed and availed itself of the opportunity to set up any defense that it had. It therefore was not prejudiced by the form of action selected by the plaintiff.
As the statute does not prescribe any particular form of action and has not been heretofore construed in this respect and as the defendant has been in no way prejudiced, we are of the opinion that section 24, chapter 348, G. L. 1923, applies. "Exceptions to decisions or rulings prior to trial shall be open to revision after verdict or final decision on the merits, but so far only as it appears to the supreme court that the verdict or final decision was erroneously affected thereby."
The defendant's substantive defense is that the insured—the defendant in the original action—has not complied with one of the terms of her policy: "The Assured shall at all times render to the Company all co-operation and assistance in his power."
Beatrice Cohen, the insured, made a report to the defendant. She went to the office of defendant's attorney and told him her version of the accident. The attorney wrote a statement which she signed and certified to as true.
The case was in order for trial October 21, 1931. Two days prior to the day of trial, at the request of defendant's attorney, she went to his office and then gave a version of the accident which differed from the written statement which she had previously signed. The defendant through its attorney thereupon sent her the following letter: "Dear Madam:
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