Maryland Casualty Co. v. O'Meara

TYLER, P. J.

Action upon an indemnity agreement.

Plaintiff issued a policy of insurance to one G. P. Haiden, insuring him against loss or damages for personal injuries or death sustained by any person by reason of his ownership of certain automobiles used in his business. While the policy was in full force and effect, Herbert O’Meara, a minor, was injured by an automobile owned by Haiden and operated in the scope of his business. Subsequent to the accident, plaintiff casualty company, for and on behalf of Haiden, paid to defendants herein, the parents of the minor, the sum of $250 in full satisfaction of any and all

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damages sustained by them by reason of the injury to their minor son. At the time payment was made, defendants executed and delivered to Haiden a certain release and contract of indemnity. This release provided that, by reason of the payment, defendants released and forever discharged Haiden from any and all actions, claims or demands by reason of any damages caused by the accident. The agreement contained the further provision that, in consideration of the payment, defendant H. O Meara would indemnify and hold harmless the said Haiden for any loss to him which he might be compelled to pay in consequence of the accident. After the entering into of this agreement, Herbert O Meara, the injured minor, died and his father, Harry O Meara, who had signed the release and indemnity agreement, sued Haiden for such death and obtained a judgment, which has since become final, for the sum of $10,250. Plaintiff’s full liability thereon under its contract of insurance with Haiden, was the sum of $7,146.82, which it paid. Thereupon the present action was brought by plaintiff against O’Meara on the agreement of indemnity executed by O ’Meara to Haiden, it being claimed that plaintiff having paid under its policy was subrogated to all rights of Haiden arising out of the release and indemnity agreement. Judgment was prayed for in the sum of $7,146.82, the amount paid by plaintiff under its casualty policy. Defendants demurred to the complaint on various grounds, one of which was that another action was pending between the same parties. The demurrer was sustained without leave to amend and judgment was entered in favor of defendants. The appeal is from such judgment.

The question here presented for our consideration is whether or not the judgment obtained by O’Meara for the death of his minor son