dissenting:
V. J. Arnold owned an automobile. His brother, Wade Arnold, lived with him, and on a certain occasion drove that machine with the consent of his brother, the owner. With him went Mrs. Justis. There was an accident in which she was injured. Compensation was sought in an action at law, to which both V. J. Arnold and Wade Arnold were made parties defendant.
That case came on to be heard upon its merits. There was a verdict and judgment in favor of Mrs. Justis, against Wade Arnold, but not against V. J. Arnold, as to whom a verdict of “not guilty” was returned. That is to say, in orderly procedure, V. J. Arnold has been held not responsible for those injuries which Mrs. Justis had suffered.
The petitioning company had issued to V. J. Arnold a policy of automobile insurance. Its coverage is a matter of contract, and is limited by the contract itself, unless enlarged or curtailed by some statute in effect at the date of its execution.
The protection to the assured is thus stated in the policy:
“This coverage protects the Assured against legal liability imposed upon the Assured resulting solely and directly from an accident by reason of the ownership, maintenance *170or use of said automobile, on account of bodily injury and/or death suffered, or alleged to have been suffered by any person, other than the Assured or persons in' the same household as the Assured, or those in the service or employment of the Assured.”
Who is the “Assured?” We are told in the policy that it is V. J. Arnold.
In that policy is also this provision:
“* * # Nor shall any action to recover for any loss covered by this policy, arising or resulting from claims upon the Assured for damages, be sustainable unless it shall be brought by the Assured after the amount of damages for which the Assured is liable, by reason of any casualty covered by this policy, is determined either by a final judgment ■against the Assured or by agreement between the Assured and the plaintiff with the written consent of the Company.”
This is a condition precedent. Not only has no final judgment against V. J. Arnold been entered, but it has been ■actually ascertained that he is not liable. It follows that the measure of liability of the insurance carrier cannot be considered at all, until the liability of the “Assured” has been fixed by final judgment.
For these reasons, I am constrained to dissent from the judgment of the court in this case.
Eggleston, J., concurring in dissent.