Zeigler v. Ryan

• Decision Date: 05 August 1935
• Docket Number: 7758.
• Citation: 262 N.W. 200,63 S.D. 607
• Parties: ZEIGLER v. RYAN et al.
• Court: South Dakota Supreme Court

262 N.W. 200

63 S.D. 607

ZEIGLER v. RYAN et al.

No. 7758.

Supreme Court of South Dakota

August 5, 1935

Appeal from Circuit Court, Meade County; James McNenny, Judge.

Action by Carl Zeigler against A. B. Ryan, whose true given name is unknown, and others. Defendants Citizens Fund Mutual Fire Insurance Company of Red Wing, Minnesota, a corporation, and National Implement Mutual Insurance Company of Owatonna Minnesota, a corporation, demurred to the complaint, and from order sustaining the demurrer, plaintiff appeals.

Order affirmed.

Dan McCutchen, of Belle Fourche, for appellant.

Atwater & Helm, of Sturgis, for respondents.

WARREN Presiding Judge.

Plaintiff entered into an agreement with the defendant A. B. Ryan for transportation in an automobile from Sturgis, S. D., to Chicago, Ill., and return. In consideration therefor he was to render certain services and make certain contributions. The trip was made to Chicago, and on the return trip a servant by the name of Kennedy, who was operating the automobile, so negligently handled and drove the automobile that it skidded and left the roadway, rolled over, and threw the plaintiff so that his head went through the plate-glass window in the back of the car, thereby causing severe injuries to the plaintiff's head, arms, and legs and breaking a certain vertebra in plaintiff's back. The plaintiff joined as defendants in this action the Citizens Fund Mutual Fire Insurance Company, a corporation, of Red Wing, Minn., and the National Implement Mutual Insurance Company of Owatonna, Minn., a corporation, upon the theory that they were jointly liable by reason of having issued insurance policies upon the car of the defendant Ryan. Certain paragraphs of plaintiff's complaint therefore become material. A portion of paragraph 8 thereof reads as follows: "'The Company further agrees to defend in the name and on behalf of the Assured, any suit seeking damages for such bodily injury or property damage, even if such suit is groundless, false or fraudulent; to pay irrespective of the limit of liability stated in the policy all costs taxed against the assured in any such defended suit, all premiums on attachment and/or appeal bonds, all expenses incurred by the Company, all interests accruing after entry of judgment until the Company has paid, tendered or deposited in Court such part of such judgment as does not exceed the limit of the company's liability thereon, also any expense incurred by the Assured for such immediate surgical relief as shall be imperative at the time of bodily injury,' and each of the defendant insurance companies inserted a clause and condition in the contract that they did, separately assume one half of the liability for any loss or damage under the policy."

Paragraphs 9 and 10 are as follows:

"That the said policy of insurance contained a further clause and provision as follows:

"'This policy provides indemnity only as follows:

"'Loss or damage by the car,

"'Liability, Limit for one person $25,000.'

and this plaintiff says that by reason of the allegations as to the insurance companies defendant, hereinabove contained, the said Insurance Companies, defendant, have or claim to have an interest in the controversy, adverse to the plaintiff and is a necessary party to a complete determination and settlement of the questions involved, and is a proper party to this action.

"X. That the defendants the Citizens Fund Mutual Fire Insurance Company and the National Implement Mutual Insurance Company, are jointly and severally liable to this plaintiff for the damages suffered by him under and by virtue of the provisions of said Policy. Wherefore Plaintiff demands judgment against the defendants for the sum of Fifty Thousand Dollars, together with his costs and disbursements in this action."

The two insurance companies demurred to the complaint as follows:

"I. That the Court has no jurisdiction of the subject of the action attempted to be stated in said complaint.

"II. That several causes of action have been improperly united.

"III. That the complaint does not state facts sufficient to constitute a cause of action against these defendants or either of them."

Upon the hearing of the demurrer the court entered an order sustaining the demurrer, from which order plaintiff has appealed.

Appellant contends that he has a right to sue the owner of the car and the insurance companies jointly. He has cited as authority for so doing certain sections of the South Dakota 1919 Revised Code which read as follows:

"§ 2314. Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the questions involved therein. * * *"

"§ 1464. Indemnity is a contract by which one engages to save another from a legal consequence of the conduct of one of the parties, or of some other person."

"§ 1469. One who indemnifies another against an act to be done by the latter, is liable jointly with the person indemnified, and separately to every person injured by such act."

It may be conceded, we think, that the policies of insurance were in the nature of an indemnity contract. That sections 2314 and 1469, above quoted, make it possible to join all of the defendants herein is somewhat doubtful. In the case before us it seems that the relationship is founded upon the contract of indemnity, and unless the assumption of this relation put the insuring defendants in such a position with reference to the defendant Ryan that it became liable with the latter for all wrongs committed during the course of the operation of the automobile which fall within the terms of the contract, they cannot be held liable in this action.

The Supreme Court of Montana in Cummings v. Reins Copper Co., 40 Mont. 599, 107 P. 904, 911, dealing with a similar situation, dealt at length with the liability of each of the parties and has made the distinction as to the indemnitors on a sheriff's bond in which they were held liable with the sheriff when he unlawfully seized and retained property at their instance, stating that that liability was because they had in a legal sense prompted his action and therefore participated with him in a wrong as principals, and not because they were liable to the plaintiff on the contract of indemnity. Construing its statute similar to ours, the court said: "Section 6215 of the Revised Codes declares: 'The provisions of this Code, so far as they are substantially the same as existing statutes, or the common law, must be construed as continuations thereof, and not as new enactments.' In view of this provision, we must hold that section 5653, supra, does not change the rule recognized in the cases cited, unless the language employed in it impels to the contrary conclusion. The...