Morehouse v. Employers' Liability Assur. Corp. of London, England

• Citation: 177 A. 568,119 Conn. 416
• Parties: MOREHOUSE v. EMPLOYERS' LIABILITY ASSUR. CORPORATION OF LONDON, ENGLAND.
• Decision Date: 05 February 1935
• Court: Supreme Court of Connecticut

177 A. 568

119 Conn. 416

MOREHOUSE v. EMPLOYERS' LIABILITY ASSUR. CORPORATION OF LONDON, ENGLAND.

Supreme Court of Errors of Connecticut.

February 5, 1935

Error from Superior Court, New Haven County; Patrick B O'Sullivan, Judge.

Action by Edna Morehouse against the Employers' Liability Assurance Corporation of London, England, on a policy of automobile insurance. To review a judgment for defendant plaintiff brings error, and defendant moves to dismiss.

Motion to dismiss denied. No error.

Policy agreeing to pay insured automobile owner any " loss by reason of liability imposed by law" on assured for damages on account of bodily injuries or destruction of property, and providing for action by injured person against insurer in case of insolvency or bankruptcy of assured, held policy of indemnity against loss, not policy against liability, precluding injured person who had recovered judgment against assured from recovering in action against insurer, where assured was not insolvent or bankrupt.

Cornelius J. Danaher, of Meriden, and Samuel E. Hoyt, of New Haven, for plaintiff in error.

Daniel D. Morgan and Joseph B. Morse, Jr., both of New Haven, for defendant in error.

Argued before MALTBIE, C.J., and HAINES, BANKS, AVERY, and JENNINGS JJ.

AVERY Judge.

The Employers' Liability Assurance Corporation issued an automobile liability insurance policy to the Morehouse Bros. Company, a Connecticut corporation doing business in Meriden. The plaintiff in error, Edna Morehouse, brought suit December 6, 1921, against Morehouse Bros. Company for injuries which she claimed to have received while riding as a passenger in an automobile owned by that company, and then being operated by her brother, an employee. On March 7, 1922, after trial, a verdict was rendered in her favor in the amount of $12,500, which the court set aside; the basis for its action being that the defendant corporation, organized to buy and sell building materials, was not liable in damages for personal injuries received by the plaintiff while riding at night as a guest in its automobile upon the invitation of its president who had, for the time being, appropriated the car for the pleasure of his own family, because under such conditions neither the president nor the operator of the car, although an employee, was acting within the scope of his employment. The action of the trial court in setting aside this verdict was affirmed on appeal (Morehouse v. Morehouse Brothers Co., 99 Conn. 720, 122 A. 791).

Thereafter, in 1928, while a new trial of the action was in progress, the plaintiff offered in evidence a minute of the board of directors of the corporation, adopted January 17, 1924, approving, ratifying, and confirming the action of its president in permitting the use of the automobile on the evening of the accident as an incident of the authority possessed and exercised by him before that time. Thereupon, counsel for the insurance company, who were defending the action, withdrew from the case on the ground that they then, for the first time, had learned of the minute and that its passage by the board of directors was the result of collusion and fraud, and violated the provisions of the policy relating to co-operation of the assured with the company and against voluntary assumption of liability by the insured. After counsel had withdrawn, the jury returned a verdict of $15,000 in favor of the plaintiff.

On September 18, 1929, Miss Morehouse instituted an action against the Employers' Liability Assurance Corporation, the insurers, to recover the face of the policy, alleging that no part of the judgment had ever been paid by the defendant, Morehouse Bros. Company, or by the insurance company. In her complaint she predicated her right to proceed on the authority of chapter 331 of the Public Acts of 1919, providing that insurers should be absolutely liable under policies against loss or damage on account of bodily injuries, and that the judgment creditor might sue the insurer directly upon the judgment. In its answer, the defendant, after denying the allegations of the complaint, set up in special defenses the action of the corporation in passing the minute of January 17, 1924, approving the action of its president in permitting the use of the company's automobile for the pleasure of his own son and daughter, which was alleged to be a voluntary assumption of liability on the part of the defendant, and also alleged a lack of co-operation as required by the terms of the policy and fraud. Thereafter, the plaintiff made a motion for over as provided in the rules, Practice Book 1934, p. 51, § 124; and a copy of the insurance policy was filed in compliance with the order of the court. A demurrer to these defenses was interposed by the plaintiff and overruled by the court. The plaintiff then filed a reply setting forth that the minute adopted by the board of directors truthfully stated what had been the practice of the corporation prior to and at the time of the accident, which was denied in the rejoinder. Thereafter, by leave of the court, the defendant amended its answer by alleging that chapter 331 of the Public Acts of 1919 was unconstitutional and void, in that it was not approved by the Governor within three days of the final adjournment of the General Assembly in that year. To this amendment the plaintiff filed a reply alleging that the defendant was estopped from setting up this defense and had waived the right to base a defense on the unconstitutionality of the statute; and, further, that by the issuance of its policy chapter 331 of the Public Acts of 1919 became a part of the contract. These allegations were denied by the defendant in the rejoinder. Thereafter, a judgment was rendered by the superior court in which the following issues were found for the defendant: (1) The plaintiff had no right to maintain her action under chapter 331 of the Public Acts of 1919, because the act was unconstitutional; (2) the plaintiff had no right to maintain her action under the policy because the policy was one of indemnity against loss; (3) conceding the policy to be one of indemnity against liability, the plaintiff has mistaken her proper remedy. From this judgment, the plaintiff did not appeal, but brought the present writ of error.

We are confronted at the outset by a motion to dismiss; the claim of the defendant being that the errors claimed to have been committed cannot be reviewed upon the record for the reason that they involve a consideration of the policy contract which is claimed to be no part of the record. The remedy by writ of error is not co-extensive with that by the process of appeal. Cary v. Phoenix Ins. Co., 83 Conn. 690, 697, 78 A. 426. It is not intended as " a process for invoking the jurisdiction of this court, in cases where the more adequate and equitable process of appeal can be used." New York, N.H. & H. R. Co. v. Hungerford, 75 Conn. 76, 83, 52 A. 487, 489. Only errors which appear upon the record of the superior court can properly be considered. Corbett v. Matz, 72 Conn. 610, 611, 45 A. 494, 48 L.R.A. 217. A memorandum of decision is improperly contained in a writ of error; it " is not a *** finding of facts, nor unless made so by the court is it such a part of the official record as to become the basis of a writ of error." Lippitt v. Bidwell, 87 Conn. 608, 615, 89 A. 347, 850; Cummings v. Hartford, 70 Conn. 115, 123, 38 A. 916. The policy, however, was produced and filed on the order of the court pursuant to a demand for oyer made under the rules. These provide that a copy of a written instrument of which over is demanded shall be filed as an exhibit. Practice Book 1934, p. 53, § 124. A copy so filed becomes, therefore, a part of the pleading to which it relates. New Idea Pattern Co. v. Whelan, 75 Conn. 455, 457, 53 A. 953; Jacobson v. Hendricks, 83 Conn. 120, 124, 75 A. 85. The party obtaining oyer may demur to the adversary pleading as insufficient on its face. Morrill's Adm'x v. Catholic Order of Foresters, 79 Vt. 479, 65 A. 526, 527; Village of Western Springs v. Collins (C. C. A.) 98 F. 933, 934; Earle v. Fidelity & Deposit Co. (N. J. Sup.) 68 A. 1078; Waterhouse v. Sterchi Bros. Furniture Co., 139 Tenn. 117, 201 S.W. 150, 151; 49 C.J. 609. The insurance contract, therefore, must be considered as a part of the record, and the motion to dismiss is denied.

The question before us upon this writ of error, therefore, is whether upon the record the judgment for the defendant was permissible. O'Donnell v. Sargeant & Co., 69 Conn. 476, 483, 38 A. 216. Upon the pleadings, it appears that chapter 331 of the Public Acts of 1919 was not signed by the Governor within three days after the adjournment of the Legislature. The act, therefore, was void. State v. McCook, 109 Conn. 621, 649, 147 A. 126, 64 A.L.R. 1453; Preveslin v. Derby & Ansonia Developing Co., 112 Conn. 129, 133, 141, 151 A. 518, 70 A.L.R 1426; Siller v. Siller, 112 Conn. 145, 148, 151 A. 524. It did not become a law until validated in 1929 (Pub. Acts 1929, Sp. Sess, cc. 1, 4), long after the accident in this case occurred. The claim of the plaintiff that the defendant by its conduct had waived its right to assert the unconstitutionality of this law or was estopped to do so cannot be upheld. As far as appears, the defendant was under no obligation to assert the unconstitutionality of this statute until a suit was brought against it based thereon, nor is it alleged that any benefit was invoked or accepted by the defendant which would preclude it from attacking the constitutionality of the statute. The principles which are decisive of cases such as Holley v. Sunderland, 110 Conn. 80, 86, 147 A. 300; Rindge v. Holebrook, 111 Conn. 72, 75, 77, 149 A. 231, and Coombs v. Larson, 112 Conn....