CLARK, C. J., dissenting. Civil action tried upon an agreed state of facts. From the judgment rendered, plaintiff and defendant both appealed. PLAINTIFF'S APPEAL. This action is brought on an indemnity bond to recover the amount of a judgment rendered against the Bobbin Company in favor of Mary Marcus, administratrix of Harlan Marcus, for the negligent killing of her intestate, for the sum of $6,650, the limitation in the bond sued on being $5,000. *Page 516
The defense is:
1. That the insured failed to forward to defendant the summons and process served on insured when the action was commenced.
2. That the contract sued on is one of indemnity against loss and not against liability, and that plaintiff has not paid the judgment.
(446) In regard to the first defense the facts are: that upon the death of the said Harlan Marcus the Linville Bobbin Company notified the defendant of the death of the said Harlan Marcus and demanded that said company comply with the terms of its contract evidenced by said policy, notifying the defendant that a suit was about to be instituted for the recovery of damages, and the said defendant disclaimed any liability under the terms of said policy, declaring as its reason for declining to recognize any liability imposed upon it under the terms of said policy that, under the statute of North Carolina, they were not liable under the terms of said policy on account of the death of said Harlan Marcus, on the ground that, as it contended, the said Harlan Marcus was under the age of fourteen years; that thereafter, when the said action was begun against the Linville Bobbin Company for the recovery of damages on account of his alleged negligent killing, the Bobbin Company gave no notice to the defendant of the institution of said action, said failure to give said notice being due to the fact that the said defendant had theretofore refused and declined to recognize any liability under the terms of said policy; that the said suit was defended by the counsel employed by J. R. Lowe, receiver of the Bobbin Company, to conduct said defense, without the aid or assistance of the defendant.
It is contended by defendant that this was not intended as a denial of all liability to the insured upon the contract, but only a denial of the liability of the insured for the death of the employee. The language of the finding does not support the contention. In our opinion the defendant denied its liability on the contract to the insured. Consequently, the insured was relieved from the duty of forwarding the process served on it.
An insurance company cannot deny all liability under a contract of insurance and then be heard to say, after it has repudiated the contract, that assured should have given it notice when the action was instituted, so that it could have defended the action in accordance with the terms of the contract. Having denied any liability under the policy, it was neither necessary nor proper to notify defendant again. Guerringer v. Ins. Co.,133 N.C. 407; Lanier v. Ins. Co., 142 N.C. 14, page 18; Higson v. Ins. Co.,152 N.C. 206; Jordan v. Ins. Co., 151 N.C. 341.
Upon the second ground of defense, we are of opinion that plaintiff is not entitled to recover the five thousand dollars. The contract does not indemnify the assured against liability, but only against actual *Page 517 loss. It is admitted that the judgment has not been paid. That being so, the plaintiff has suffered no loss and cannot recover.
It is held by this and other courts that "when a contract of indemnity is clearly against loss, no action will lie in favor of the insured until some damage has been sustained, either by the payment of the whole or some part of the employee's claim." Clark v. Bonsal, 157 N.C. 270;Hensley v. Furniture Co., 164 N.C. 151; Finley v. Casualty (447)Co., 113 Tenn. 598; Casualty Co. v. Martin, 163 Ky. 12.
Affirmed.
DEFENDANT'S APPEAL.
The defendant appeals because the judge rendered judgment in favor of the plaintiff, receiver, for costs, expenses and attorney's fees incurred by plaintiff in defending the Marcus suit. The plaintiff's costs, expenses and attorney's fees incurred by him in defending the suit amount to $352.95, of which he has paid $140.
The contract makes it the duty of defendant, at its expense, "to defend in the name and on behalf of the assured any suit brought against the assured to enforce a claim, whether groundless or not, for damages on account of bodily injuries or death suffered, or alleged to have been suffered, through the assured's negligence, by the persons described in subsections a and b of the preceding paragraph, at the places and under the circumstances therein described, and as the result of an accident occurring while this policy is in force."
The failure of the defendant to defend the suit, after repudiating its liability to the assured, constituted a distinct breach of contract and justified the plaintiff in defending it at his own expenses. Beef Co. v.Casualty Co., 201 U.S. 173.
These costs and expenses constitute a primary liability of defendant that plaintiff may recover as damages for the breach of the contract. PowerCo. v. Casualty Co., 153 N.C. 279.
Affirmed.