Gugliemetti v. Graham

JAMES, J.

Defendants appeal from a judgment entered against them. The action was for damages alleged to have been suffered by the plaintiffs by reason of the killing of two cows. The cows were struck by an automobile stage driven by defendant Graham and owned by the United Stages. The defendant Western Indemnity Company is sued because of its alleged liability on an undertaking given. The undertaking mentioned was one general in form and that commonly in use, and made for the purpose of insuring automobile carriers against loss by reason of damage caused by the operation of their. vehicles.

The principal point argued by the appellants is that there was a misjoinder of parties defendant, particularly that the surety company by its undertaking only agreed to respond after judgment against the insured; in other words, that the contract was one of insurance against loss and not one to indemnify against liability. It is true that the contract of insurance, in so far as its terms directly fix the liability of the insurer toward the insured, does bear the general character of a contract of insurance against loss, rather than one to indemnify against liability. However, there are two clauses in the contract which further extend the obligations of the insurer. It provided, in part, that, “. . . this policy otherwise to all its warranties, terms, conditions and provisions not conflicting herewith, is hereby ex

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tended to indemnify the assured against loss arising from the liability imposed by law for damage on account of injury to or destruction of property of any or every description (property of the assured or property of others while in charge of the assured or the assured’s employees excepted) resulting from any accident due to the ownership, maintenance or use of any automobile enumerated and described herein. . . . This policy will inure to and be for the benefit and protection of anyone who shall sustain any damage or injury, or to the heirs, personal representatives, administrators, executors or assigns of any such person who may be so damaged or injured or suffer death by reason of negligence or misconduct on the part of the driver or operator of the automobile ...” The latter clause, we think, is plainly intended to create a primary liability against the insurer in favor of persons injured or damaged. While the general terms of the contract import a contract to indemnify the insured against loss, the term last quoted imports a condition and agreement that, so far as other persons are concerned, the obligations of the policy are available where such persons have sustained “damage or injury.” Necessarily, then, a cause of action would arise whenever the damage accrued regardless of whether action had been brought against the insured to enforce collection of the same. That the surety company may be joined as defendant in an action to recover damages where the policy is conditioned similarly to that involved here is held in