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Smith v. Phoenix Indemnity Co.

Decided: January 26, 1938.

CHARLES W. SMITH, PLAINTIFF-APPELLEE,
v.
PHOENIX INDEMNITY COMPANY, A NEW YORK CORPORATION, DEFENDANT-APPELLANT



On appeal from the Supreme Court.

For the plaintiff-appellee, Charles Schmidt and James A. Major.

For the defendant-appellant, Edwards, Smith & Dawson (Raymond Dawson).

Wolfskeil

The opinion of the court was delivered by

WOLFSKEIL, J. Plaintiff in a prior action obtained a verdict and judgment against an assured of the defendant and subsequently brought this action under the provisions of Pamph. L. 1924, ch. 153, p. 352, to recover the amount thereof from the defendant on the policy of insurance which it had issued to the assured. The Supreme Court entered judgment upon stipulated facts against the defendant and in favor of the plaintiff for the full amount of the original judgment, together with interest and costs, and defendant appeals.

From the facts as stipulated it appears that plaintiff, Charles W. Smith, and his wife, Grace Lee Smith, sustained injuries as the result of an automobile accident on October 17th, 1931, caused by the negligence of one Jean Storms, defendant's assured. In the suit instituted by the Smiths the wife claimed damages for her personal injuries and the husband sued for his own injuries, damages to his automobile and damages sustained in consequence of his wife's injuries. The trial of that suit resulted in a general verdict of $12,000 in favor of the wife and a general verdict of $8,000 in favor of the husband. The defendant obtained a rule to show cause with respect to both amounts which was discharged and no appeal taken. Thereafter $10,000 was paid to Grace Lee Smith by defendant and a warrant for satisfaction pro tanto was given.

Defendant, admitting the validity of its policy and the insolvency of its assured, denied that the entire judgment recovered by the plaintiff against its assured is covered by the policy, alleging that the judgment in part awards to the plaintiff compensation for items not contracted for by the defendant.

The pertinent provisions in the policy are as follows:

"Agreement 1.

To pay within the limits specified in Statement 3 the loss from the liability imposed by law upon the assured for damages (including consequential damages) on account of bodily injuries, including death resulting at any time therefrom, suffered or alleged to have been suffered by any person or persons as a result of such accidents."

And

"Statement ...


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