Hebojoff v. Globe Indemnity Co.

JAMES, J.

The appeal in this case is taken from a judgment entered in favor of the plaintiff. The plaintiff here first recovered judgment against a corporation named Pendleton Iron & Metal Company, which judgment was for damages for personal injuries suffered by the plaintiff while in the employ of said corporation. At the time the injuries were suffered a policy of insurance had been issued by this defendant, insuring the Pendleton Company against loss by reason of accident to its employee. After judgment had been entered against the Pendleton Company in favor of plaintiff here, the Pendleton Company issued its promissory note to the plaintiff and thereupon caused the judgment to be satisfied of record, and thereafter an assignment was made by the Pendleton Company of all right of action which it had as against the appellant here under the contract of insurance. This action was then brought on account of such assigned claim.

The principal point argued in the briefs refers to that term of the policy of insurance which.reads as follows: “No action for the indemnity against loss provided for in insuring agreement I of this policy shall lie against the company, except for reimbursement of the amount of loss actually sustained and paid in money by the assured in full satisfaction of a judgment duly recovered against the assured after trial of the issue, nor unless brought within two years after such judgment shall have been paid. ...” Preliminarily it may be stated that the insuring agreement “I” referred to in the above quotation covered all principal loss which might be suffered by the assured. Appellant urges this court to decide that under the agreement providing that loss must be paid in money before an action can be maintained: 1. Payment by a promissory note is no payment at all; 2. That if the giving of a promissory note in satisfaction of the judgment debt against the assured constitutes payment in the ordinary case, such conclusion could not be applied here where the contract expressly provides that the loss must be paid “in

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money.” As to whether the giving of a promissory note in discharge of liability of an assured is to be considered as payment of the debt, where made in good faith and for that purpose, is a question no longer open to much difference of judicial opinion. The question is fairly settled by the authorities in the affirmative. This court had occasion to consider the precise contention made here under the first head, in the case of