Schwartz v. Norwich Union Indem. Co.
| Decision Date | 10 October 1933 |
| Citation | 212 Wis. 593,250 N.W. 446 |
| Parties | SCHWARTZ v. NORWICH UNION INDEMNITY CO. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from an order of the Circuit Court for Milwaukee County; John C. Kleczka, Circuit Judge.
Action by Paul Schwartz against the Norwich Union Indemnity Company. Defendant's demurrer was overruled, and it appeals.--[By Editorial Staff.]
Affirmed, and cause remanded.
Schwartz sued his insurer, the Norwich Union Indemnity Company, December 9, 1931, to recover: First, damages in the amount equal to the difference between his insurance coverage and the judgment rendered against him in an action for personal injury in which the insurance company was bound to defend him; and, second, for damages for breach of the insurance contract between him and the defendant. The first cause of action is one in tort for fraudulent and negligent handling of the defense in the action for personal injury resulting in a judgment against the defendant in excess of the coverage.
The defendant demurred generally on the ground that upon the face of the complaint there appears a failure to state facts sufficient to constitute a cause of action. The demurrer was overruled, and defendant appeals.Bender, Trump, McIntyre & Freeman, of Milwaukee, for appellant.
Rubin & Zabel, of Milwaukee (W. B. Rubin and R. R. Stauff, both of Milwaukee, of counsel), for respondent.
[1] In its brief and oral argument but one contention is made by appellant with respect to the first cause of action. This contention is that because the allegations show a failure by respondent to pay the judgment rendered against him in the case described a cause of action is not stated; that until such judgment is paid respondent has suffered no loss or legal damage. This cause of action rests upon a breach of duty ex delicto and is sufficient against the objection raised. Decker v. Mathews, 12 N. Y. 313;Metropolitan Elevated Ry. Co. v. Kneeland, 120 N. Y. 140, 24 N. E. 381, 8 L. R. A. 253, 17 Am. St. Rep. 619;Knutson v. Fenelon, 200 Wis. 261, 227 N. W. 857;Chesapeake & O. Ry. Co. v. Stump, 165 Ky. 708, 178 S. W. 1037;Patterson v. Springfield Traction Co., 178 Mo. App. 250, 163 S. W. 955;Peacock v. Coltrane (Tex. Civ. App.) 116 S. W. 389.
One who has been subjected to a judgment by reason of fraud practiced upon him by another standing in the relation of insurer is entitled to relief even though he has not paid the judgment. A cause of action in his favor arises and his damage occurs when the liability becomes thus fixed. Neither the right of action nor the measure of damages depends upon the fact of payment. It is enough if by reason of the appellant insurer's fraud the respondent must submit to a liability to pay and the precise sum which he is liable to pay is known, or ascertainable,...
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