(dissenting). I respectfully dissent in this case upon two grounds :
(1st) I find no authority in the law by which one secondarily liable may be sued upon his obligation without joining the party who is primarily liable. While the liability of the insurance company is not under the statute secondary in the sense that that of a guarantor is secondary, it is nevertheless dependent upon the liability of the insured.
(2d) One of the covenants contained in the policy is that the insurer shall have the right “to defend in the name and on behalf of the assured, all claims or suits for such injuries for which the assured is, or is alleged to be, liable.”
While sec. 85.25 has been sustained and recoveries have been permitted under it against the insurer, the court has held over and over again as in Morgan v. Hunt, 196 Wis. 298, 220 N. W. 224, that the liability of the insurer is subject to the terms of the contract of insurance.
The right to defend in the name of the insured is under this policy a contract right which is wiped out entirely by the decision in this case. It is no answer to say that the insurer may make an application to the trial court to require the assured to be made a party. That view makes the right of the insurer dependent upon the discretion of a court. While I realize that in this particular case, making the estate of the insured a party to the proceeding would be largely a matter of form rather than of substance, nevertheless I think the insured has a contract right in the enjoyment of which he should be protected by the judgment of the court even though in a particular case it may not be very valuable.