dissenting: I am of opinion tbat tbe legal conclusions of Mr. Robert L. Ryburn, wbo bas made a very clear and comprehensive report in tbis case, are correct upon tbe facts as found by bim and as modified by tbe judge.
It is admitted tbat tbe policy was issued to Ruffin & Harris, a copart-nership, and contracts “to indemnify tbe assured against loss from liability imposed by law upon tbe assured on account of bodily injuries, etc.”
Tbe policy contains tbe following clauses:
“Right of Action Against Corporation. — E. No action for tbe indemnity against loss provided for in section 1 of tbe insuring agreements of tbis policy shall lie against tbe corporation, except for reimbursement of tbe amount of loss actually sustained and paid in money by tbe assured, in full satisfaction of a judgment, duly recovered against the assured, after final determination of tbe litigation, nor unless brought within two years after such final judgment shall have been paid.
“L. No change in tbe agreements, conditions, or statements of tbis policy, either printed, signed by tbe general manager of tbe corporation, nor shall notice to or knowledge possessed by any agent or any other person be held to waive, alter, or extend any of such agreements, conditions or statements.”
It is unnecessary to consider tbe right of tbe plaintiff railroad company to be subrogated to tbe rights of Ruffin & Harris under tbe policy as Charles L. Ruffin, one of tbe copartners, is a party plaintiff to tbis action and tbe case may be considered from tbe standpoint of bis right to recover.
It is admitted tbat tbe payment made to tbe railroad company by Ruffin was in settlement of tbe sum paid by tbe company in discharge of tbe judgment tbat Forney obtained against tbe railroad company. Forney, although injured in tbe service of Ruffin & Harris, sued tbe railroad company and obtained judgment against it exclusively upon tbe ground tbat tbe work was inherently dangerous and responsibility could not be shifted. He never obtained judgment against Ruffin & Harris or either of them.
Tbe payment by Ruffin to tbe railroad company was purely voluntary ' and was in no sense in discharge of a liability imposed by law upon Ruffin & Harris, or either of them.
"What is meant by “liability imposed by law” is shown by tbe provisions of tbe policy itself and it means a liability imposed and evidenced by a final judgment at tbe end of tbe litigation. By tbe express stipulation of tbe parties as set out in their contract, tbe defendant contracted to protect Rufim & Harris only from liability imposed by law *570on them, and neither Ruffin nor Harris could maintain an action against the defendant under the policy until a judgment had been duly recovered against them and after final determination of the litigation, and they had actually sustained a loss and paid the same in money, in full satisfaction of such a judgment.
If a suit had been brought against Ruffin & Harris, and either Ruffin or Harris had voluntarily paid any amount in settlement of the suit, the amount so paid could not be recovered from this defendant, and this being so, neither of them can upon any reasonable basis hold the defendant for an amount which was paid on a judgment rendered against a third party. As stated, all payments made by Ruffin were on judgments rendered against the Black Mountain Railway Company, for which he considered himself liable under the contract between him and it.
In Kelly v. London Guarantee & Accident Co., 97 Mo. App., 625, in passing on a policy of indemnity issued to a copartnership, the Court says:
“We are of opinion that where the contract of indemnity is to indemnify for the loss occasioned by accidents to employees of a partnership, for negligence of the partnership, in order to render an insurer liable, the accident must happen to the employee while engaged in work for the partnership and by reason of the negligence of the partnership, and that this must be made to appear by the judgment of the proper court.”
In an action on a policy of indemnity containing a clause identical with the one quoted, this Court held: “It is necessary for the plaintiff to show that he has sustained the loss he seeks to recover in his action against an indemnifier against loss, and not alone that a judgment has been obtained against him for an injury to an employee covered by the bond.” Lowe v. Fid. & Cas. Co., 170 N. C., 445.
In order to recover, plaintiff Ruffin must show a final judgment against himself establishing that Forney was injured in the service of the copartnership and that he has paid such judgment. This he has failed to do.
There is no pretense that this requirement of the policy has ever been waived. In fact, it could not be waived or abrogated except in the manner pointed out in Section L above quoted.