concurring specially. I concur in the ruling that if the insured did not concur in or ratify the release she would have the right to sue for damages for her injuries.
If Speetor and Garden Lakes had notice that they were dealing with the insurance company as an independent contractor in accepting consideration for the release and that the insured had not agreed to or acquiesced in the release they could not plead the release against the insured because the contract of release was not a contract with the insured. If they were ignorant of whether the insurance company was agent of the insured or an independent contractor and the insurance company only acted as an independent contractor and not as agent, they could repudiate the settlement by returning the consideration and maintain their cross-action insofar as the insured is concerned and insofar as the insured could object to the cross-action.
If Speetor and Garden Lakes had notice that they were dealing with the insurance company in the matter of the release as an independent contractor and had notice that the insured had not agreed to or ratified the release, the insurance company had the right under the terms of the policy giving it the right to control the litigation to plead the release in the name of the insured against the cross-action by Garden Lakes without destroying the right of the insured to sue for damages for her injuries.
The court should have declared the rights of the parties in accordance with the above.