Lead Opinion
The defendants contend that the trial court erred in admitting as evidence the judgment-roll in a former case between the parties hereto. The court record was relevant to a material issue. *193 It proved that the coverage of plaintiff’s motor vehicle known in the record as Car Number 48 by Insurance Policy Number 428 issued and delivered to him by the defendants and forming the basis of this action formed one of the material and relevant issues in a prior action between the identical parties hereto, and involved the same wrongful act, which action resulted in a final judgment upon the merits of the case and determined that Car Number 48 was within the protection of the insurance policy.
“Regardless of any difference in the causes of action or subject-matter, the conclusiveness of a former adjudication extends to every question in issue and determined by the court.” 2 Freeman on Judgments (5th ed.), § 688, and authorities cited in note 6.
See, also,
Runnells
v.
Leffel et al.,
The defendants’ contention that Motor Car Number 48 is not covered by Insurance Policy Number 428 is barred by the former adjudication, unless, as they assert, the appeal of the former case removed the bar.
“It has been held in some jurisdictions that the pendency of an appeal from a judgment deprives the judgment of that character of finality which is necessary to constitute it an estoppel, and for that reason it cannot be set up as a bar to a new suit. In other jurisdictions, however, it is held that, although the pendency of an appeal stays the enforcement of the judgment, it does not affect its conclusive effect as evidence, and therefore does not prevent the judgment from being pleaded in bar of a second action for the same cause.” 34 C. J., pp. 771, 772.
In this jurisdiction, it has been uniformly held that an appeal does not affect the conclusive character of
*194
a judgment as evidence:
Day
v.
Holland,
“In this state it is the established rule that the force of a decree as a plea or as evidence remains unimpaired until it is reversed or modified.”
The defendants next ask this question:
“Has the plaintiff under this policy a cause of action without pleading and proving the loss sustained and actually paid in money by him after actual trial of the issue?”
We have set out in our statement the provisions of the insurance policy that defendants invoke to defeat an action against the Exchange until the loss or expense sued for has been paid by plaintiff with defendants’ consent or “after actual trial of the issue.” In view of the foregoing provisions, unless the plaintiff can plead and prove the waiver of such conditions by the insurance company, it is necessary, as a condition precedent to maintaining this action, that he plead and prove his compliance therewith by performance: 3 Bancroft’s Code Pleadings, §§ 1574, 1610; 14 Stand. Ency. of Proc., p. 39;
Long Creek Building Assn.
v.
State Ins. Co.,
“It is a rule of pleading in this state that, where the plaintiff relies upon a contract he must show full performance on his part or else some valid excuse, as an example of which latter waiver may be classed, and that all this must appear in Ms complaint.”
Then follow citations.
*195
Waiver of the performance of a condition precedent may be pleaded by a statement of facts sufficient to establish a waiver. In other words, it is unnecessary to aver waiver in terms where the facts alleged show a waiver: 14 Stand. Ency. of Proc., pp. 52, 53. To the same effect are
Durkee
v.
Carr,
Plaintiff’s pleading avers the coverage of Car Number 48 by the insurance policy forming' the basis of this action. It avers accidental injuries to five several persons. It alleges that the plaintiff gave the insurance company notice and forwarded to it every communication and all information coming into his possession relating to the accident; that the insurance company took complete charge and control of the investigation of the facts and continued in control of the situation for seven months; that it filed answers in two actions arising out of the accident and conducted the trial of the case of Dorothy Wells against this plaintiff, but that, upon the return into court of a verdict in the sum of $4,000 against him, the company immediately repudiated its contract with this plaintiff and notified him that it disclaimed all liability with respect to the accident and the claims for damages against the stage company arising out of the same, and refused to take any further action thereon. Plaintiff’s complaint further avers that the three additional and unlitigated actions mentioned in our statement were brought against him; that he notified the insurance company of the filing of such actions, *196 transmitted to it all papers and process in relation thereto, and requested that it defend the same, and that, following its repeated repudiation of the insurance contract and disclaimer of all liability thereunder, he settled and adjusted each of them by a settlement that was “fair, reasonable and prudent.”
The plaintiff in this case relies upon the doctrine announced in
St. Louis Dressed Beef & Provision Co.
v.
Maryland Casualty Co.,
“On May 25, 1901, the plaintiff became liable for damages on account of bodily injuries accidentally *197 suffered by Mrs. Nellie Heideman and caused through the negligence of the plaintiff * # . The plaintiff immediately gave the defendant notice of * * a claim against the plaintiff for damages. * * The defendant notified the plaintiff that it denied that it was liable to it on account of the damages resulting from the accident * * because 0 * the driver of the plaintiff’s wagon was not an employee of the plaintiff. * * The injuries to Mrs. Heideman were * * serious and permanent, and the plaintiff was liable for damages in each of the suits.”
The following question in that case, certified by the Circuit Court of Appeals for the Eighth Circuit to the Supreme Court of the United States for instructions thereon, is the identical question involved in the case at bar, and the holding of the United States Supreme Court on that question is, we believe, decisive of this appeal.
“Did the denial of all liability by the assurer and its refusal to defend the suits in the name and on behalf of the assured as provided by paragraph 2 of the policy constitute such a breach of the contract on its part that it released the assured from its agreement in paragraph 3 that it would not settle any claim except at its own cost without the consent of the assurer previously given in writing, and from the provision of paragraph 8 that no action should lie against the assurer as respects any loss unless for loss actually sustained and paid by the assured in satisfaction of a judgment after trial of the issue?”
This question was answered in the affirmative.
While the authorities are not in full accord on the subject, we believe the better doctrine to be that announced by Mr. Justice Holmes, speaking for the Supreme Court of the United States in St. Louis Dressed Beef & Provision Co. v. Maryland Casualty Co., supra, the case last hereinabove discussed. *198 From the syllabus of that case we take the following summarization of the opinion:
“An insurance company issued its policy insuring the assured against statutory and common-law liability for damages caused by negligence of insured or its employees, the insured to give immediate notice of any accident to the company, which agreed to defend any suit for damages brought against the assured, the latter not to make any settlement without the company’s consent, and not to bring any action under the policy except for loss actually paid in satisfaction of judgment after trial. After an accident of which notice was duly given, the assured was sued and the company refused to defend on the ground that the accident was not within the risks assumed. The assured, to avoid heavy judgments, settled the suits out of court and sued the company. Held: That the refusal of the company to defend the suits constituted such a breach of the contract that it released the assured from the agreement not to settle the claim without its consent, and amounted to a waiver of the condition that it was only liable for judgment rendered against the assured after trial and satisfied.”
The following from
Matter of Empire State Surety Co.,
“Failure to defend suits brought against the assured constituted a breach of contract upon its part (citing cases). Such a breach of contract on the part of the company released the assured from the agreement not to settle the claim without its consent and w&s, in effect, a waiver of the condition of the policy that the company should only be liable after the assured had paid the judgments rendered against him. * * In St. Louis D. Beef & P. Co. v. Maryland Casualty Co., supra, Mr. Justice Holmes said: ‘The defendant, by its abdication, puts the plaintiff in its place with all its rights.’ ”
*199
Another leading case upon the subject is that of
Butler Bros.
v.
American Fidelity Co.,
“If the first contention is sustained, it means that whenever the insurer refuses to defend an action, leaving its entire conduct to the insured, the latter, if he is unwilling to lose the benefit of the insurance he has paid for, must' go to the expense of a trial, and take the chances of a heavy verdict, very likely in excess of his insurance. * * The company has refused to take the defense, has refused to exercise its right to settle the case or defend it, as it saw fit, and has left the entire control and conduct of the litigation with the insured, all contrary to its contract. The amount paid on a reasonable settlement constitutes a ‘loss from the liability imposed by law,’ as much as does the payment of a judgment rendered after a trial. * * We hold that, by its refusal to take the defense of the action, defendant broke its contract, and waived the condition therein which required a judgment after trial of the issue, as well as released the insured from its agreement not to settle the case without its consent.”
In the recent case of
Rosenberg
v.
Maryland Casualty Co.
(N. J.),
“The Company is not responsible for any settlements made or expenses incurred by assured, unless ® * (such are) ® * first specifically authorized in writing by the Company.”
*200 The Supreme Court of New Jersey, in rendering its decision, thus interprets the above paragraph, in language clear and convincing:
“This provision can only apply where both parties were proceeding under, and in accordance with, the terms of the policy. The defendant’s refusal to defend the action ag’ainst the plaintiff was in direct violation” of the terms of the policy, and, of necessity, compelled the plaintiff to protect his interest.”
We believe this to be sound reasoning and a fair statement of the law.
To similar effect are
Interstate Casualty Co.
v.
Wallins Creek Coal Co.,
Now, recurring to the pleadings: It is a primary rule of pleading’ that a plaintiff must recover according to the allegations of his complaint, or not at all:
McMahan
v.
Canadian Ry. Co.,
“I instruct you that * * before the plaintiff is entitled to recover this sum, or any part thereof, from the defendants, he must first show to your satisfaction, by a preponderance of the evidence, that the plaintiff was liable to Wells for the injuries which Mr. Wells claimed. If you do not find that the plaintiff was liable to Wells in any sum whatever, your verdict upon that cause of action should be in favor of the defendants, for in that event there was nothing to compromise and no liability arose out of it in favor of the plaintiff in that ease.”
Both the court and the defendants properly assumed that the pleadings charged plaintiff’s liability to the claimants. This instruction was especially favorable to the defendants, in view of the fact that the insurance company had agreed to defend “any suit brought against the Subscriber to enforce a claim covered by Clause A *
*
and * * Clause B of this policy, whether groundless or not.” A case much in point is
Iverson
v.
McDonnell,
We have considered all the questions involved in this appeal and find no sufficient reason for reversing the case. Hence we direct its affirmance.
Aeeirmed. Rehearing Denied.
Dissenting Opinion
Dissenting in Part. — I do not think the pleadings in this case sufficiently broad to sustain the conclusion arrived at. There is no allegation of any liability on the part of the plaintiff to pay the claims, which it is alleged were adjusted and settled. *202 In all of the cases I have examined, this allegation seems to have been made. Further, there is no positive allegation that the plaintiff has paid anything pursuant to the alleged “settlement and adjustment.” In the absence of this allegation, I am of the opinion ■that this phase of the case has not been met to justify the judgment against the defendant here.
The cases cited by Mr. Justice Brown seem fairly logical to sustain the contention, that by failure of the insurance company to defend, as they had agreed, the waiver arose which authorized the plaintiff in this case to settle and pay the claims. But such a course would be liable to frequent abuse unless plaintiff should positively plead and prove that there was an actual liability and an actual bona fide payment of money pursuant to such agreement. I do not think that sufficiently appears in the pleadings in this case, and that evidence on that subject was improperly admitted.