74 Wash. 159 | Wash. | 1913
— In July, 1910, appellant issued to respondents a policy of insurance, indemnifying them against loss for damages on account of injuries accidentally suffered by any person while about the construction of certain sewers at Grangeville, Idaho, for which respondents had obtained a contract from such city. In August a young lady named Vinnie Bourland fell into one of the sewer trenches, and received certain injuries for which she brought suit, joining the city and respondents as defendants. Respondents delivered the complaint served upon them to appellant, with a request that it appear and defend the action under the terms of its policy. Appellant acquiesced in this request, employed counsel, and took full charge of the case as against respondents. The complaint was twice amended, the second amended complaint alleging the same negligent act as the original in permitting the open trenches to remain without proper protection. This last complaint omitted respondents as defendants. Thereupon appellant wrote respondents the following letter:
“Peb. 24, 1911.
“Moore & Kibler,
“Gentlemen: I have just received a telegram from our attorneys at Grangeville, Idaho, that the suit of Miss V. Bourland against the city of Grangeville and yourselves has been dismissed as against yourselves. I am instructing our attorney to continue in the case as a first rate counsel with the corporation counsel of the city of Grangeville, but in so doing we wish it to be understood that it is under a reservation of our right, as we are not responsible, under our policy, for any judgment which may be rendered against the city of Grangeville. I expect to leave for Grangeville tomorrow night, and will keep you posted as to how matters are going on at that place. Yours very truly,
“N. B. Colding,
“Northwest Claim Division.”
If we properly understand the point upon which appellant seeks to avoid this judgment, it is a contention that the policy contemplated indemnity against direct actions by injured persons against respondents, and that it was not intended to cover any loss that respondents might suffer by reason of being liable over to the city for any sum it was compelled to pay because of damages to injured persons in. the negligent performance of the work. It also suggests an insufficiency of proof. The indemnifying clause in the policy is “against loss from the liability imposed by law upon the assured for damages on account of bodily injuries, etc.” What was the liability “imposed by law” upon respondents in the performance of their contract with the city? . So far as is here material, the law imposed upon respondents the duty of using a proper degree of care in the progress of their work, to avoid causing damage or injury to those making lawful use of the streets. It is. true that the city was also liable because of its duty to keep its streets in such a condition that pedestrians might walk upon them in safety. But this liability upon the part of the city in no wise lessened the liability imposed by law upon respondents to answer in damages to any persons injured because of their negligence in the construction of the sewers. So far as any injured person is concerned, he had, under such circumstances, a cause of action against either the city or the person doing the work, and this cause of action arises out of a liability imposed by law, and if the injured person seeks his remedy against the city in the first instance, then the city has its right of action against its contractor whose negligence caused the injury.
No authority is needed to substantiate this rule. The complaint upon which the judgment was obtained in Bourland against the city bases the right of action against the city on its negligence in keeping the trenches in its streets unguarded, and in failing to give warning of this unguarded
It matters not that respondents were not mentioned as defendants in the second amended complaint upon which the Bourland judgment was based. The negligence which established that judgment was their act, and the issue was tendered by the pleadings. Respondents, although not parties to that action, were directly interested in the result of that litigation and actively defended that case. They were, in substance, parties to it and bound by it. Douthitt v. MacCulsky, 11 Wash. 601, 40 Pac. 186; Shoemake v. Finlayson, 22 Wash. 12, 60 Pac. 50; Ramsey v. Wilson, 52 Wash. 111, 100 Pac. 177. So with appellant: It had full knowledge of the pendency of that action, employed counsel to defend it, and it is likewise bound by the adjudication of respondents’ negligence. Spokane v. Costello, 33 Wash. 98, 74 Pac. 58; Seattle v. Saulez, 47 Wash. 365, 92 Pac. 140. The judgment in that case was, therefore, properly admitted in order to establish negligence of the respondents and the consequent liability of appellant under its indemnifying bond.
We find no error in any of the rulings complained of, and the judgment is affirmed.
Ellis, Fullerton, and Main, JJ., concur.