Morgan v. Hunt
| Decision Date | 18 June 1928 |
| Citation | 220 N.W. 224,196 Wis. 298 |
| Parties | MORGAN v. HUNT ET AL. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from an order of the Circuit Court for Dane County; August C. Hoppmann, Circuit Judge. Reversed.
Action begun August 18, 1927, by Anna Morgan against George Hunt and his insurance carrier, the General Casualty Company, to recover for personal injuries sustained when the plaintiff was struck by an automobile driven by the defendant Hunt. From an order entered December 22, 1927, striking out a plea in abatement, the defendants appealed.
The policy issued to defendant Hunt by the General Casualty Company, to insure him against loss or expense resulting from claims for personal injuries caused by the automobile operated by him, contained the provision:
“No action shall lie against the company until the amount of damages for which the assured is liable by reason of any casualty covered by this policy is determined, either by final judgment against the assured or by agreement between the assured and the plaintiff with the written consent of the company.”
The plaintiff joined the casualty company as defendant in an action, without first procuring a judgment against the defendant Hunt, as required by this provision of the policy. The casualty company interposed a plea in abatement on the ground that the action was prematurely brought. On motion of the plaintiff, the circuit court struck out the plea in abatement.Richmond, Jackman, Wilkie & Toebaas, of Madison, for appellants.
A. H. Bushnell and Hill, Thomann & Beckwith, all of Madison, for respondent.
Joseph A. Padway, of Milwaukee, amicus curiæ.
This appeal presents the question whether the provision of the policy quoted above is in conflict with section 85.25 of the Statutes, which provides:
“Any bond or policy of insurance covering liability to others by reason of the operation of a motor vehicle shall be deemed and construed to contain the following conditions: That the insurer shall be liable to the persons entitled to recover for the death of any person, or for injury to person or property, because of the negligent operation, maintenance, use or defective construction of the vehicle described therein, such liability not to exceed the amount named in said bond or policy.”
2. This statute was considered in Ducommun v. Inter-State Exchange, 193 Wis. 179, 212 N. W. 289, 214 N. W. 616;Bro v. Standard Accident Ins. Co., 194 Wis. 293, 215 N. W. 431;Fanslau v. Rogan, 194 Wis. 8, 215 N. W. 589. It was there determined that this statute required such policies as that here in question to be construed as contracts of indemnity which impose upon...
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...company until the liability of its insured had been determined, we held that provision was dispositive. See, e.g., Morgan v. Hunt, 196 Wis. 298, 300, 220 N.W. 224 (1928) (concluding that § 85.25 (1925) "does not create a liability or confer any right of action where none exists under the te......
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