*1 OF COURT Owners’, App. 558. etc., Exchange v. Ind. Auto Edwards—82 Auto Protective Edwards. Owners’ Rehearing denied Decem- 1922. [No. Filed October ber 1922. Transfer denied March 1925.] par- Parties.—Complaint subject to demurrer 1. defect of ties.—Section 263 Burns R. S. persons all having an action an interest of the parties, company against in an an insurance action by property, on the seller of the which had been sold insured alleging conditional sale his inter- the purchaser est policy, exceeded the of the amount the whatever, presenting had no interest issue thus an between purchaser, the seller with- which could not be determined joining purchaser, necessary party, out the the latter was a complaint by and a the seller alone de- would be parties, p. murrer of defect 561. Insurance.—Necessary parties by. 2. to action vendor on con- by ditional sale contract.—In an action the on in- vendor an policy by purchaser property surance taken out the on sale, purchaser necessary party conditional the is a where the complaint avers that he has no interest policy; the vendor’s interest exceeds the of amount complaint by hence a vendor alone is demurrable for de- parties, p. fect of 561. by 3. conditions insured must Insurance.—Performance complaint by having averred in erty.—In another prop- by the conditional seller of on a policy by purchaser taken out insuring but as vendor may appear, his- interest must aver that performed all policy the conditions of the to be performed him, necessary sufficiency this policy, insurance and the insurer can against make defense the vendor that it could make p. 562. Insurance.—Subrogation rights insurer to insured’s when 4. party’s wrongful loss caused third act.—Where the tortious conduct third is the cause of a loss of. within the policy, upon terms of an insurance subrogated, by operation insurer becomes law, to whatever wrongdoer, the insured p. 563. Insurance.—Insured’s settlement with causin'^ destroys liability loss reduces or insurer.—Where a cov- ered wrongful is caused act of party, any payment third wrongdoer, such insurer, before reduces, settlement with. by operation law, liability of the payment, insurer to the extent etc., Exchange Edwards—82 and where the insured releases wrongdoer, release before settlement with the policy, destroys, by law, operation action on the p. 563. *2 Insurance.—Payment loss not or amount con- tender of wrongdoer causing] right against precedent dition under settlement loss with insured.—Where after by wrongful act of occasioned an insurance was released his party, and the insured settled with third wrongdoer, need not right such right precedent to its plead or a condition tender as settlement, p. 563. the benefit Judge. Court; Norton, E. Miles Circuit From Lake Own- Benjamin the Auto Action Kankakee, From Illinois. Protective ers’ appeals. plaintiff, Re- the defendant for versed. appellant. Richardson,
Greenlee, for &Call Rose, appellee. George P. The appelleeinstituted J.
Statement policy of insurance issued on a action to recover this following facts appellant Hecht. The to one John complaint: in the amended are averred Hudson plaintiff owner of a certain was the “That May 15, 1919, by touring virtue of On car. possession of sale, the car was
of conditional plaintiff; in that on was the title Hecht but John Hecht, on day policy was issued the car to said provided policy, which rider to the a rider attached Benjamin any, payable to loss, if shall be appear, subject to all nevertheless his interest was de- policy; that the automobile terms of the resulting accident, in a in sum stroyed by at plaintiff’s in the automobile interest $485; that is, the amount was, in excess of and now time the loss has no policy, Hecht on due policy.” on the recoverable sum APPELLATE COURT OF Owners’, etc., Exchange Edwards—82 Ind. policy, complaint, part which was made a following provision: contains the “If pol- the insurer shall claim that a loss under this icy negligence person, was caused of a third then subrogated, of the loss the insurer shall be payment, to the extent of the of the insured wrongdoer; thereupon to recover from the said assigned writing to the insurer bring and the insurer shall have the wrong- an action in the name of the purpose enforcing doer the claim.” A demurrer to the amended grounds: (1) parties; there is a defect of (2) facts, for insufficient was overruled. The defend- ant paragraphs, filed an answer in para- six the first graph being general denial. The demurred to each ground affirmative answer on *3 paragraph that each fails to state facts sufficient to constitute cause of defense. This demurrer was sus- paragraph tained as to the fifth and overruled as to the others.
The fifth of answer contains the follow- ing 8, 1919, averments: “That on June the automo- bile, subject which was the was dam- aged by a collision with another automobile driven Curran; one that wrong- collision was due to the Curran; 20, 1919, ful act of that on October Curran paid Hecht, to the John the sum of in full $500 settlement of the so occasioned to the automo- thereupon and Hecht bile released Curran from arising negligence out of his as afore- ; the settlement between said Hecht and Curran subrogation against Curran; insurer lost its by the settlement power- Hecht was rendered assign writing, in to the less the cause of 558.. Edwards—82 prior had Curran set- which he tlement, pay the loss.” even if insurer should plaintiff in in
Trial resulted a verdict sum accordingly. $485, was rendered J., opinion of the court: delivered the persons “All that: of Civil Procedure Code action, having an interest in the obtaining the relief demanded” parties. R. S. §262 Practice, 1881; see, also, 1 Revision Works’ Watson’s contains ch. It noted that must be plaintiff’s in the averments that amount due covered the insurance exceeds the policy; no interest what and that John Hecht has policy. Those aver ever in recoverable on the sum ments an issuable matter between state vitally in those Presumably interested Hecht. Hecht is legal right averments, averments, he has and on those adjudi feature, there can be no to be heard. On that day in court. Whether cation until had his Hecht has be cannot in the insurance or not Hecht has an interest party. It he in an action to which determined permitted to main ought if Edwards is clear that objection presented spite tain his action token, complaint, then, by the same the demurrer to the bring mak may without Hecht an action ing in his and aver the action. has no interest subjected basis, to the ex On action, annoyance not hazard of another pense, *4 Under the withstanding in the case at bar. the record jurisdiction, Edwards had the in this decisions but, plaintiff; as sole his action institute rightfully presented, properly he could not objection prosecute final the action and it to maintain 82—36 VOL. OF COURT App. 558. etc., Exchange v. Edwards—82 making- party.
without John Hecht a p. 415; Acts 1911 Franklin Ins. Co. v. Wolff 23 Ind. 549. The com demurrer to the amended plaint ground should have been sustained on the parties. there is a defect It should be noted also that in the is averréd acquired amended that Hecht the automobile from Edwards virtue of a contract of condi tional sale. averment that Hecht means equitable became the owner while Edwards re legal policy tained the title. The rider attached does not make Edwards the insured. The contract insurance continues to be a contract the in between give surer and Hecht. The effect of the is to Ed rider money may wards interest in the which become due policy may the event of interest which not exceed his interest in the In insured. words, other it is a contract Hecht with the insurer for the benefit of extent of the Edwards to the latter’s of the insurance. executory continued to be an contract re covery thereon is at all times to-be defeated the conduct the insured. If Hecht has violated any if material condition or he perform part t'o of the conditions on his' failed performed, neither he nor can recover. then Edwards might procured mortgagee, Edwards As plan right; adopted, but under the his own depends on Hecht’s to recover. The to recover to show the averments in duty rests on performed the insured has all part performed; contract on his to be conditions make defense Because of the Hecht. make which it could performance full to aver failure complaint does not state facts the amended *5 1924. 563 etc., Owners’, Auto Exchange App. v. 558. Edwards—82 Ind. sufficient constitute a cause of action. §376 1881; R. 1 S. Revision Watson’s Works’ Practice §362.
The ruling erroneous the demurrer to the amended judgment; a reversal of the since there must issues, be a there reformation of the question presented prob- is another the record which ably again. will question is, arise Did court sustaining err paragraph the demurrer to the fifth of the answer? general
The rule is that where the tortious conduct of a third is the cause of a within the terms then, upon payment subrogated oper the insurer becomes ation of law to whatever the insured wrongdoer. Pittsburgh, etc., R. Co. German (1909), Ins. Co. App. 44 Ind. N. 87 995; Pittsburgh, etc., R. Co. Ins. Home Co.
183 Ind. Ann. 828; Cas. 14 1918A R. C. L. cited; and- cases there 26 C. J. and cases there cited; Cyc ap The wisdom of that rule is parent. permit To the insured to from .receive wrongdoer both the give and the insurer would be to him compensation double for his loss. The can permitted not be to shield theory himself on the that by insurance; the loss is covered contract Manifestly made for his benefit. it unjust compel would the insurer to suffer the con sequences wrongful act of another. provision policy requiring
The the insured to assign writing his claim or cause wrongdoer gives greater no respect subrogation 5, 6. with than the law would if
confer subject. contract were silent on that By terms the insured is under no obligation assignment to make the until the insurer COURT OF v. Edwards—82 paid indemnity. utmost
has can demand under terms simultaneously with assignment averment indemnity. no there is Since the insurer the answer in the fifth logic that paid indemnity, follows in strict it has Nevertheless subrogation. acquired no rights liabilities way *6 there be a to enforce must loss; they time parties at the as existed purpose of folly permit beneficial be to for it would merely because, in the matter defeated the rule to be wrongdoer ahead of paying went of sup is, therefore, and an additional There insurer. is applicable That rule plementary rule to such cases. by the insured any payment received as in wrongdoer with the settlement from the before liability of the reduces, by operation law, surer, of payment; where the and to the extent insurer wrong insured releases his release settlement with the doer before operation law, action on of destroys, of etc., Fidelity, Co., etc., Co. policy. Insurance 546, 2 523, 791, Am. 16 Atl. 10 St. (1888), 123 Pa. St. 586; Fire Ins. Packham v. German Co. L. R. A. A. 1066, 461, 50 L. R. 515, Am. Atl. 80 St. 46 91 Md. cited; Mobile there and authorities 828; C. J. (1894), 41 C. Columbia, R. Co. S. Ins. Co. If thereto. and note 44 Am. St. 19 S. assignment concerning the insured's stipulation signif given its full claim plead or ten need not icance, yet the to have the precedent to its a condition der wrongdoer. re To with the settlement benefit plea or tender to aver insurer's quire the empty assignment an ex to to entitle order quite unreasonable. right, would tinguished TERM, 1924. Fox, Rec., v. Slusser—82 Ind. to the fifth demurrer
It error to sustain the the answer. v court is di- reversed; the trial trial, the demurrer grant to sustain rected to a new parties reform the complaint, permit pleadings.
McMahan, J., participating.
Fox, Receiver, v. Slusser. 12,177. Filed March 1925.] [No. Servant.—Finding conclu- Industrial Board 1. Master finding appeal evidence.—A sive on when sustained appeal where the Board not be disturbed Industrial will fairly finding, p. 566. tends to sustain the evidence employee Servant.—Injury out held to arise Master though employment an act in violation em- caused injury employee’s ployer’s resulted order.—The fact violation of an order or direction of from an act of his in require employer finding injury does not did not that his employment, p. out of his arise Industrial Board of Indiana. From *7 Application compensation for under Workmen’s Compensation Frank Act Calvin E. Slusser Fox, claimant, E. Receiver. From an award for appeals. defendant Affirmed.
Bailey Compton, appellant. & Bloom, appellee. Whiteleather & an acci C. J. Calvin E. received Slusser Fox, injury employment Frank dental while in Light Mutual Electric Receiver of the Farmers Association, injury Power the Industrial for which compensation. Board awarded employee
The receiver is not en contends that compensation titled to miscon because wilful Compensation (Acts within duct Act. p. 158, 1921). Supp. In Burns’ §8020r