Action for personal injuries wherein, judgment for plaintiff remaining unsatisfied, the plaintiff garnisheed the Belt Automobile Indemnity Association, the insurer of defendant under a policy of public liability automobile insurance. On the issue joined between plaintiff and the garnishee, the latter defended on the ground that it had been discharged from liability because of defendant’s violation of the contract of insurance by refusing to give the garnisheе information and to co-operate with it in the defense. In fact, the garnishee charges that defendant, conspiring with plaintiff, attempted to fix liability1 upon it notwithstanding that thе accident in question was such as not to result in such liability. Upon the issues so joined betwеen plaintiff and garnishee, there was a trial which began before a jury. However,^the learned trial judge, at the conclusion of the trial, discharged the jury and decided thе case in favor of the garnishee. Plaintiff appeals from the resulting judgment.
Plaintiff and defendant are brothers. Plaintiff and two others were riding with defendant in his automobile at the time of the accident which resulted in the injury to plaintiff out of which this action arose. Mr. Bellotti, one of the other passengers, was also injured. The original statements made to the garnishee’s adjuster by both plaintiff and defendant were unequivocally to the effect that, without any negligence on the part of the defendant, his automobile wаs run into from behind by another machine. The garnishee was not advised otherwise until, upon thе trial of the main action, the defense of which the garnishee assumed and conduсted pursuant to its contract, the evidence for plaintiff was that defendant was rаcing his car with another and was forced into the ditch, his negligence being thereby put beyond controversy. For the defense, when it *102 was proposed to call defendant himself, counsel for the garnishee were assured that his testimony would not follow at all thе story of the accident theretofore given by him to the garnishee and up to that mоment maintained, but on the contrary would corroborate that of plaintiff. Naturally аnd for good reason, he was not put upon the stand. His testimony would have but made morе certain the verdict against defendant.
There is ample evidence to sustain thе finding of defendant’s failure to comply with the contract of insurance, to the effеct that he refused to aid the garnishee in defending the action, wilfully misr informed it concerning essential facts and was engaged in assisting plaintiff in an attempt to defraud the garnishee by refusing to testify “to the real facts” of the accident. In that situation, we are not permitted to disturb the result.
The argument for plaintiff naturally is based upon the evidence on that side of the case. It ignores too much the strong counter proof for thе garnishee. We are not at liberty to- be so oblivious of the latter, especiаlly now that it has been found true by the trier of fact. We have examined the record, with thе aid of the argument for plaintiff and, for the reasons indicated, cannot adopt the latter.
There is nothing in the other assignments of error which would justify a reversal. One of them is predicated upon the refusal to submit the case to the jury. Upon such issues as thоse now under consideration, between a judgment creditor and garnishee, there is no right of trial by jury. That is settled law here and,elsewhere. Weibeler v. Ford,
Another point for plaintiff is that the garnishee is estopped from asserting a breach of the contract of insurance by defendant or, if there was such a breаch, that it has been waived. We have examined the argument addressed to that proposition and the evidence upon which it is based. The latter wholly fails to sustain the propositions so advanced.
Judgment affirmed.