dissenting.
C. J. Alyea and F. C. Nichols were Attorneys-in-Fact for The Belt Automobile Indemnity Association and on December 9, 1920, issued to the plaintiff, M. Leo Elliott, á policy of insurance by which the Company agreed to indemnify him, to a certain amount, against loss from theft of the automobile, and against “actual loss sustained” by him on account of “legal liability imposed on Iiitti on account of bodily injuries- (including death resulting therefrom) accidentally inflicted upon any person, while said- contract is in force, through the ownership, maintenance or use of said automobile”. The limit of liability was five thousand dollars for injury to or death of any one person. The policy also contained a property damage clause.
■ The association in and by the contract of indemnity, agreed to defend “any suits” brought against the plaintiff to recover damages on account of such happenings as were providéd for by the terms of the “liability”-and ‘‘property damage” provisions: - -It agreed to pay the *553“cost and expenses attendant, upon the investigation, adjustment and settlement of claims” and to “reimburse” the plaintiff for all “costs taxed and paid” by ..the plaintiff in any legal proceedings defended by the Association and all interest accruing after entry of judgment upon such part thereof as, shall not be in excess of the Association’s liability, as above limited, where the suit is appealed by or with the consent of the Association..
There was also a clause in the contract which read, as follows: “P. No suit or action on this contract for the recovery of any claim for a fire, theft or collision loss shall be sustainable in any court of law or equity until after full compliance by the subscriber with all the foregoing requirements, nor unless commenced within twelve months after such loss or damage occurred, and no suit or action on this contract for the recovery of any loss or from claims upon the subscriber for damages, either for personal injuries or property damage, shall be sustainable in any court of law or equity until after full compliance by the subscriber with all the foregoing requirements, and unless such action shall be brought by the subscriber for loss or expense actually sustained and paid in money by the subscriber after' trial of the issue, nor unless such action is brought within twelve months after the payment of such loss or expense.”
Other clauses which the contract contained need! not' be referred to as they seem to have no bearing or' relation to the point involved in this case. ■ :
In February, 1921, while the policy was in force, the plaintiff’s wife, while driving the automobile, ran upon and injured O. D. Knowles, who brought an action against the plaintiff for damages for personal injuries and recovered a judgment for thirty-five hundred dollars. • "
*554The plaintiff complied with all the conditions as to notice to the Association of the claim and the Association defended the action; but.took no writ of error so the judgment stands of record but is unpaid. The plaintiff alleges his inability to pay it without sacrificing his property by forced sale and that he is embarrassed in transacting his ordinary business and in dealing with his property because of the existence of the unsatisfied judgment.
The defendants demurred to the declaration upon the grounds that it does not allege any actual loss by the plaintiff. The contention being that until the judgment was paid by the plaintiff the defendants were not liable upon the contract of indemnity. The demurrer was sustained and the plaintiff took writ of error. .
The plaintiff in error says that the liability clause, contained in a “Rider” attached to the policy and referred to above as containing the agreement of the Association to indemnify the plaintiff “against actual loss sustained by subscriber on account of legal liability imposed on him on account of bodily injuries (including death resulting therefrom) accidentally inflicted upon any person,” etc., shows an intention of the parties to cast liability upon the Association when the assured became legally liable for the damage resulting from the injuries inflicted. And that if there is any conflict between the provisions of that rider and Clause “P” copied above the provisions of the rider should obtain;. or if there is any doubt as to, the intention of the parties engendered by those two apparently conflicting provisions, that interpretation should be made which will secure greater indemnity to the assured.
That rule, announced in the decisions of this court cited in the brief of counsel for plaintiff in error, is probably applicable to a cause like, the one at bar. The rule may be considered established in this State, at least so far as it *555applies to fire and accident insurance. See Massachusetts Bonding & Insurance Co. v. Gramling, 75 Fla. 409, 78 South. Rep. 337; National Surety Company v. Williams, 74 Fla. 445, 77 South. Rep. 212; Martin v. Sun Ins. Office of London, 83 Fla. 325, 91 South. Rep. 363.
An examination of the two clauses, however, seems to me to preclude the application of the rule for there is no real nor apparent conflict between them. The “no action” clause designated in this opinion by the letter “P” ex-presssly provides that no action shall be sustainable in any court of law or equity “until after full compliance by the subscriber with all the foregoing requirements, and unless such action shall be brought by the subscriber for loss or expense actually sustained and paid in money by the subscriber after the trial of the issue, nor unless such action is brought within twelve months after the payment of such loss or expense”.
Assuming this to be a valid agreement three conditions precedent must be compiled with by the subscriber before-a cause of action against the association in favor of the subscriber is created. In a case of this nature where a third person is injured by the subscriber’s negligent driving of his automobile, or the negligent driving of it by some one else for whose acts he may be liable, those conditions are: first, compliance with the requirements relating to forwarding to the Association every notice, summons or other process served upon the insured on behalf of third persons, rendering reasonable assistance in defending the action and abstaining' from assuming liability or incurring any expense or settling any claim except at his own cost; second, payment in money by the subscriber, after trial, of the' loss or expense actually sustained; and third, the bringing of the.action within á certain time after the payment- of-such loss or expense. -'
*556The “Rider”, containing the “Liability” and “property Damage” clauses, contains the words “Against actual loss sustained by subscriber on account of legal liability imposed upon him on account of bodily injuries (including death resulting therefrom) accidentally inflicted upon any person,” etc. So the agreement was that the Association would indemnify the subscriber against actual loss sustained on account of legal liability imposed upon him on account of bodily injuries, accidentally inflicted upon any person. Clause P. required the loss, that is the loss on account of legal liability imposed, to be paid in money before action against the Association should be sustainable.
'.'■There is no conflict between these two provisions; nor is there any doubt as to their meaning.
It was permissable for the parties to agree that no action should be sustainable against the insurer in favor of the insured until the latter had paid in money the loss imposed by- legal liability on account of injuries inflicted upon another by accident; and as I read the policy such was the agreement. See Lorando v. Gethro, 228 Mass. 181, 117 N. E. Rep. 185; Continental Casualty Co. v. Bows, 72 Fla. 17, 72 South. Rep. 278.
Legal liability for damages is imposed upon one so soon as one, by his negligent act, injures another. A judgment does nothing more than merge that liability into a contract of record for the payment of a definite sum. It judicially determines the existence of the liability. See 3 words and phrases, “Liability”, p. p. 98-101.
The policy was not a contract of indemnity against “liability for damages” but it was a contract of indemnity against “actual loss sustained” on account of “liability for damages' .If there was any doubt about such being the purpose of the agreement it is completely removed by *557the language of clause “ P ”, which provides that the action against the Association, to be sustainable, should be one for the “loss or expense actually sustained and paid in money by the subscriber after trial of the issue”.
The contract of the insurer was one of indemnity against actual loss sustained on account of legal liability; not a contract to pay all damages with which the insured may be legally charged or which he may be required to pay by reason of any liability on account of injuries inflicted upon another, as were the terms of the policy under consideration in American Employers Liability Ins. Co. v. Fordyce, 62 Ark. 562, 36 S. W. Rep. 105. See Solary v. Webster, 35 Fla. 363, 17 South. Rep. 646.
The distinction is not only pointed out in the Florida case above cited but also in the following, and many others. Finley v. United States Casualty Company, 113 Tenn. 592, 83 S. W. Rep. 2; Fenton v. Fidelity &. C. Co., 36 Ore. 283, 56 Pac. Rep. 1096, 48 L. R. A. 770; Lane v. Westmoreland, 79 Ala. 372; Loyd v. Marvin, 7 Blackf. (Ind.) 464; Valentine v. Wheeler, 122 Mass. 566, 23 Am. Rep. 404; Miller v. Fries, 66 N. J. L. 377, 49 Atl. Rep. 674; Weightman v. Union Trust Co., 208 Pa. St. 449, 57 Atl. Rep. 879; Wilson v. Smith, 23 Iowa 252; Wisconsin Zinc Co. v. Fidelity & Deposit Co. of Maryland, 162 Wis. 39, 155 N. W. Rep. 1081, Ann. Cas. 1918C, 399; Fidelity & Casualty Co. of New York v. Martin, 163 Ky. 12, 173 S. W. Rep. 367, L. R. A. 1917F, 924.
The plaintiff in error insists that as the defendant Association assumed and conducted the defense of the action it must respond to plaintiff’s demand for the pay.ment and cannot require payment thereof by the plaintiff as a condition precedent to the maintenance' of an action by him. ■'
Decisions from the states of-New Hampshire, Minnesota-, *558Washington, Texas and Nebraska have been cited in support of the proposition. The proposition is the basis of the dissenting opinion in the case of Fidelity' & Casualty Co. of New York v. Martin, supra, and rests for authority, upon the case of Sanders v. Frankfort Marine, Accident & Plate Glass Ins. Co., 72 N. H. 485, 57 Atl. Rep. 655, the first case cited in the brief fo'r plaintiff in error in this case.
In the dissenting opinion referred to Mr. Justice Nunn does not deny the legality of clauses like that contained in the'policy in this case, and designated as clause “P”, but he asserts that the contract is susceptible of two constructions; one which is favorable to the insured, the other to the insurer. Arid by an argument which ignores the plain meaning of words, which he says were hidden ‘ ‘ away near the middle of the policy” in a “fine-print clause”, arrives at a conclusion different to that held by a majority of'his associates. He states that the position he takes is not unfair to the Company. The accuracy of that statement depends upon a fact not disclosed by the record, namely: the monetary, or other consideration inducing the parties to enter into the particular form of contract.
It is perfectly conceivable that an insurance company would designate one class of insurance involving indemnity against liability a higher risk than one involving indemnity against actual loss paid in money, and charge premiums accordingly. If there is nothing against public policy in the latter form of indemnity it is 'difficult to perceive how constructing the latter forms of policy, or contract, to be a character or risk identical with the former is not making a contract for the parties to the injustice of the insurer.
' An analysis and discussion of the Cases cited by the counsel for plaintiff in error would lead to no beneficial result; as the final determination of the matter would be *559nothing more than deciding whether the decisions of the. courts of the states above referred to should be accepted in preference to the decisions of the courts of many more states holding in accordance with the views held by the trial court in this ease. Frye v. Bath Gas. & Electric Co., 97 Me. —, 54 Atl. Rep. 395; Traveler’s Ins. Co. v. Moses, 63 N. J. Eq. 260, 49 Atl. Rep. 720; Connolly v. Bolster, 187-Mass. 266, 72 N. E. Rep. 981; Allen v. Aetna Life Ins. Co., 76 C. C. A. 265, 145 Fed. Rep. 881, 7 L. R. A. (N. S.) 958; Goodman v. Georgia Life Ins. Co., 189 Ala. 130, 66 South. Rep. 649.
The majority opinion follows the theory applied in the' Minnesota and New Hampshire eases, Patterson v. Adan, 119 Minn. 308, 138 N. W. Rep. 281, 48 L. R. A. (N. S.) 184; Sanders v. Frankfort Marine, Accident & Plate Glass Ins. Co., supra. That theory is: that when the Insurance. Company takes charge of the defense of the assured in the damage action, as authorized by the provisions of the policy, an ensuing damage judgment against the assured. converts the policy into an undertaking to indemnify against liability and not merely against loss actually paid.. This theory, however, is adopted in the face of an express; provision in the policy denying the insurer’s liability ex-eept for loss actually paid in money by the assured.
The Supreme Court of Alabama, speaking through Mr. Justice Somerville, said: “It seems to us that.their construction of the insurance contract is dominated by an undue regard for the injured stranger, rather than by a consideration alone of the intention and the obligations of the contracting parties. Such insurance, contracts, as these may be one-sided and unsatisfactory in their operation, but we know of no principle of law or public policy which forbids their operation exactly as. stipulated, by the parties, with which,. as already stated, a stranger to the *560contract has absolutely no concern.” See Goodman v. Georgia Life Ins. Co., supra.
If the majority opinion is correct then Mr. O. D. Knowles, the injured party, could maintain his action upon the policy of insurance. For if the’ policy must be construed in the interest of the person injured in the accident then he is the real party in interest.
-It is not suggested in the majority opinion that clause “P”, or so much of. it as expressly states that no, action shall be brought on the policy until the “loss” has been “actually sustained and paid in money”, is void as-against public policy. -Indeed such a proposition would be extremely difficult, if .not possible, to prove. So the effect of the majority opinion is to write a new contract for the parties and enforce against the Company an agreement, that it never made and for which it received no consideration.
If the assured in this case had been a corporation, as in the Alabama case, and had become bankrupt and gone into the hands of a receiver without paying the judgment obtained against it by the insured party the difficulty in applying the principle applied in the majority opinion might be a little more apparent. For to reimburse the corporation for a loss which it never sustained would be awkward under an agreement, valid in all respects-, that it should not be done.
In such a case unless it should be held that the injured person, a stranger to the contract, was the real party in interest and had a cause of action in his own name against the -insurer, an anomalous proposition, to say the least of it, the proceeds of the policy would go to-the corporation’s receiver to be distrbuted amongst its creditors in the order of the-priority of their claims in which the injured person-*561might not participate at all. In that case consideration for the injured person would bear no paternalistic fruit.
I am of the opinion that the trial judge correctly sustained* the demurrer and that the judgment should be affirmed.