124 Minn. 339 | Minn. | 1914
Appeal by the garnishee from a judgment adjudging a recovery against it in plaintiff’s favor.
The facts are undisputed. Those material are: On June 5, 1910, the garnishee issued a policy, agreeing to indemnify defendant against loss from liability imposed by law upon it for damages on account of bodily injuries accidentally suffered by any person or persons not employed by assured during the year following, to the extent of $5,000. The instrument contained the usual undertaking to defend, in assured’s name and behalf, suits brought against it for recoveries contemplated by the policy, payment of costs, and provided no.'action should lie against the assurer for any loss thereunder, unless brought by assured for loss actually sustained after payment thereof by it in money, all substantially as set out in the policy considered in Patterson v. Adan, 119 Minn. 308, 138 N. W. 281. Assured stipulated therein to- pay premiums calculated at the rate of 4f per cent on the entire compensation earned by its employees during the period of the policy, estimated at $142.50, and, further, if at the end of such period the entire compensation exceeded this estimate, then assured would immediately pay the additional premium earned. Plaintiff obtained judgment against defendant for $452.41, in an action, commenced September 8, 1911, to recover $20,000, grounded on an accident indemnified by the policy and occurring during its life, the defense whereof was conducted by the garnishee in the name and behalf of assured, but
No claim is made by appellant that the legal relations of the parties were in any wise affected by the receivership. The question involved is :' As to plaintiff, was the garnishee indebted to defendant under the facts disclosed? Relying mainly upon Patterson v. Adan, supra, plaintiff insists on an affirmative- answer, contending assurer’s assumption and conduction of the defense in the main action imposed a liability to pay the judgment recovered, notwithstanding defendant’s indebtedness to it in a greater amount for unpaid premiums on the policy in force at the time of the accident. As pointed out by Mr. Justice Bunn, in Butler Bros. v. American Fidelity Co. 120 Minn. 157, 164, 139 N. W. 355, 358, referring to the Adán case:
“The question * * * was whether the insurer was liable to pay the amount of a judgment rendered against the insured after a trial of the issue, but before the insured had paid such judgment.”
This court held in the case referred to that the assurer could not take sole charge of the defense of an action seeking a recovery indemnified by the policy, to the exclusion of the assured, according to its right thereunder, and, after judgment entered against defendant, deny obligation to pay assured the amount thereof, not exceeding, however, the limit of liability stipulated in the policy, and also that the sum payable could be recovered in garnishment proceedings instituted by plaintiff — the fact of defendant’s nonpayment of the judgment being regarded neither as a contingency nor condition precedent to its liability therein. Notwithstanding ap
Judgment reversed.