Merriman v. Maryland Cas. Co.

• Decision Date: 24 April 1928
• Docket Number: 20972.
• Parties: MERRIMAN v. MARYLAND CASUALTY CO.
• Court: Washington Supreme Court

266 P. 682

147 Wash. 579

MERRIMAN v. MARYLAND CASUALTY CO.

No. 20972.

Supreme Court of Washington

April 24, 1928

Department 2.

Appeal from Superior Court, Walla Walla County; John L. Sharpstein Judge.

Action by Andrew Merriman against the Maryland Casualty Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions.

Herbert Ringhoffer, of Walla Walla, for appellant.

E. L Casey, of Walla Walla, for respondent.

MAIN J.

After recovering a judgment by default against one O. E. Bowman for personal injuries, the plaintiff brought this action against the defendant upon a liability insurance policy issued by it is Bowman. In its answer, the defendant sought the right to defend upon the merits as against the plaintiff's claim that he was personally injured through the fault and negligence of Bowman. To the answer was attached a copy of the insurance policy. The plaintiff interposed a demurrer to the answer, which was sustained. The defendant declined to plead further, and elected to stand upon its answer. Judgment was entered against the defendant for the sum of $1,022 which was the amount of the judgment against Bowman and the costs of that action. From the judgment thus entered, the defendant appeals.

The complaint in the present action alleges among others, these facts: Bowman was operating a farm in Walla Walla county. The appellant, the Maryland Casualty Company, issued to him a policy of liability insurance for which he paid the premium. During the life of this policy, Andrew Merriman, the respondent, while in the employ of Bowman, was injured by what he claims was a vicious horse. He also alleges that Bowman was negligent in failing to inform him of the vicious character of the animal. After the respondent was injured the appellant was informed of the injury, and some correspondence took place with reference to a settlement, which was never effected. The respondent then brought action against Bowman, which the latter did not defend, and judgment was taken by default in the sum of $1,000. There is no allegation in the complaint that the appellant was informed of the pendency of that action, or at any time had an opportunity to defend it. The appellant's answer denied that the respondent's injuries were caused by any carelessness or negligence on the part of Bowman, and denied the vicious propensities of the horse. It pleaded affirmatively assumption of risk and contributory negligence. It is further alleged in the answer that the appellant at no time received a copy of the summons and complaint served upon Bowman, and had no knowledge of the pendency of that action until after the judgment was entered. To the answer was attached as an exhibit a copy of the insurance policy. The portions of this policy which are pertinent to the present inquiry are the following:

'III. Defense. To defend in the name and on behalf of the assured any suits or other proceedings which may at any time be instituted against the assured on account of such injuries, including death resulting therefrom, including suits or other proceedings alleging such injuries or death and demanding damages therefor, although such suits, proceedings, allegations and demands are wholly groundless, false or fraudulent; but the company reserves the right to settle any such suit. * * *

'VI. Insolvency of Assured. The insolvency or bankruptcy of the assured shall not release the company from the payment of damages for injuries or death sustained or loss occasioned within the provisions of the policy; and the prepayment of any judgment that may be recovered against the assured upon any claim covered by the policy is not a condition precedent to any right of action against the company upon the policy, but the company is bound to the extent of its liability under the policy to pay and satisfy any such judgment and an action may be maintained upon any such judgment by the injured person, his or her heirs or personal representatives, as the case may be, to enforce the liability of the company as in the policy set forth and limited. * * *

'Subject to the specific agreements, as aforesaid, and to the following conditions and exceptions: * * *

'(C) Notice. Upon the occurrence of an accident, the assured shall give immediate written notice thereof to the hom office of the company or to its duly authorized agent, with the fullest information obtainable. The assured shall give like notice with full particulars of any claim made on account of such accident. If, thereafter, any suit or other proceeding is instituted against the assured, he shall immediately forward to the company every summons, notice, or other process served upon him.'

It thus appears from the policy that the appellant reserved the right to defend all suits or other proceedings that might be brought against the assured (Bowman) on account of personal injuries sustained; that the insolvency or bankruptcy of the assured should not relieve the appellant from paying any judgment that might be obtained against him; and that, if any suit or other proceeding was instituted against...