dissenting.
At the oral argument before us the able counsel for Aetna Casualty and Surety Company frankly conceded that the obligation to defend the suit of Mary Walker against Dan River Mills, Inc., and its employee, Perkins, fell within the coverage of the Aetna policy and not within that of the Maryland policy. The opinion by the Chief Justice recognizes this premise but holds that Maryland is estopped to deny coverage for the claim. The principle of estoppel cannot, I think, be properly applied here to defeat Maryland’s claim.
Succinctly stated, Maryland’s case is this: It has paid a debt or obligation which Aetna was bound by law to pay, and having done so is entitled to reimbursement therefor from Aetna.
It is elementary that where one is compelled, or is in a situation to be compelled, to pay money which another is bound by law to pay, the law implies a promise by the real debtor to reimburse the payor for money thus put out for the real debtor’s benefit. 40 Am. Jur., Payment, section 23, pp. 727-8. This implied obligation is the basis of one of the common counts in assumpsit. Burks Pleading and Practice, 3d Ed., p. 180.
But it is equally well settled that assumpsit will not lie to recover money voluntarily paid. Burks Pleading and Practice, 3d Ed., pp. 181, 182.
Therefore, in order for the principles invoked by Maryland to apply in the present case two things must concur:
(1) At the time of the payment of the judgment or claim by Maryland it must have been a debt or obligation of Aetna; and
*237(2) In making the payment Maryland must not have been a mere volunteer.
As to point (1), while Aetna admits that the claim was originally covered by its policy, and that if the claim had been properly handled it (Aetna) would have been under obligation to Dan River Mills to defend the suit, it contends that it (Aetna) did not receive proper notice of the claim from Dan River Mills, as required by the policy, and hence was relieved of liability to defend the suit and pay the judgment.
If this position is sound then at the time of the payment by Maryland the obligation had ceased to be a debt of Aetna, and Maryland has no valid claim for reimbursement. This is so because if Dan River Mills, by failing to notify Aetna of the claim, lost its rights to protection under the policy, these rights could not be revived or reinstated by the payment of the claim by Maryland.
Whether, then, at the time the debt was paid by Maryland it was realíy an obligation of Aetna depends upon whether Aetna, or its duly authorized agent, was properly notified of the claim.
The record shows that James T. Catlin & Sons, Inc., which wrote both policies, was the duly authorized agent to receive notices of claims on behalf of each insurance company. It is true that when Dan River Mills notified Catlin & Sons of the accident it addressed that company as agent for the Maryland Casualty Company. But Catlin & Sons was agent for both insurance companies, had written both policies, and was familiar with their terms. It was the duty of the local agent, then, to send the notice to the proper company.
Both sides agree that Catlin & Sons should have sent the notice to Aetna instead of to Maryland. In making this mistake I think Catlin & Sons was the agent of Aetna and not the agent of Dan River Mills, and that hence Aetna is estopped to say that it was not properly notified of the claim.
This being so, I reach the conclusion that at the time *238Maryland undertook the defense of the suit, the claim of Mary Walker was still’ a debt or claim which should have been assumed and paid by Aetna.
This brings us to point (2), that is, whether in making this payment Maryland was a mere volunteer.
Whether, under the circumstances, in assuming the defense of the suit Maryland was originally a mere volunteer is an interesting question which it is not necessary to decide. Shortly after Mary Walker had recovered a judgment against Dan River Mills and Perkins, and while Maryland and Aetna, through their respective representatives, were undertaking to settie which should satisfy the judgment, the two insurance companies entered into a written stipulation whereby it. was agreed that Maryland should pay the judgment, that the “question of coverage” between the insurance companies should thereafter be determined “by litigation if necessary,” and that “the satisfaction of said judgment” in the meantime by Maryland should in no way prejudice the rights of either insurance company “with respect to the question of coverage.”
Clearly, then, when Maryland paid the judgment pursuant to this agreement it did not do so as a mere volunteer.
As I understand it, while the opinion by the Chief Justice concedes that the Walker claim was not originally covered by the Maryland policy, it takes the position that by reason of its conduct subsequent to the accident, Maryland is estopped to deny such coverage in the present proceeding.
The acts of Maryland which the Chief Justice says constitute an estoppel are: (1) Its representatives and attorneys first construed the policy as one which indemnified Perkins, the driver of the car; (2) It did not notify Dan River Mills or Perkins of its change in the construction of the policy; (3) Perkins relied upon the assurance given him by Maryland that he was protected by the policy; (4) The Motor Vehicle Commissioner, in determining whether it should suspend Perkins’ operator’s license, acted upon Maryland’s *239assurance that its policy covered him; and (5) Maryland did not inform Dan River Mills or Perkins that it had reached the conclusion that its policy did not protect Perkins, and continued to defend the Walker action as if Perkins were the assured.
• Were this a suit by Dan River Mills or Perkins against Maryland Casualty Company, these might be sufficient reasons for holding that Maryland was estopped to deny coverage for the claim. But this is not the case. No rights of Dan River Mills or Perkins are here involved. Their rights have been fully protected and discharged upon the payment of the judgment and they have no interest whatsoever in the present litigation. The rights of Aetna in this suit are not derived from or dependent upon the rights of Dan River Mills or Perkins. Nor are we here concerned with the rights and duties of the Motor Vehicle Commissioner with respect to revolting Perkins’ driver’s permit.
This is a suit between two insurance companies to determine which is primarily obligated to pay this judgment. There is no showing, and indeed there is no claim, by Aetna that it relied upon or was misled to its prejudice by any of the acts of Maryland, upon which the majority opinion bases the application of the principle of estoppel against the latter company. Hence the principle of estoppel cannot be applied in favor of Aetna.
“* * * It is of the essence of estoppel that the act relied upon as such should have been injurious, and to the prejudice of him who relies upon it as an estoppel. The person claiming the estoppel must in fact act upon the conduct, acts, language or silence in such a manner as to change his position for the worse. In other words, he must so act that he would suffer a loss if he were compelled to surrender, forego or alter what he has done by reason of the first party’s being permitted to repudiate his conduct, and to assert rights inconsistent with it. The doctrine of estoppel can never be applied except where the party who invokes it shows clearly that in reliance upon the conduct or silence complained of *240he has been misled to his injury. * * *” (Emphasis supplied.) 7 Michie’s Jurisprudence, Estoppel, sec. 31, pp. 292, 293.
It is true that Aetna contends here that its rights were prejudiced in that the Walker suit against Dan River Mills and Perkins was not properly defended by Maryland’s attorneys. But there is no merit in this contention. Such a claim of prejudice is an affirmative defense and the burden was on Aetna to show prejudice. In my opinion it has not done so. It is not sufficient for Aetna merely to say that, if it had defended the suit it would have done so in a different manner. It must show that it was actually prejudiced by the way in which Maryland handled the matter.
As a matter of fact, the record shows that the same reputable law firm represented both insurance companies at Danville. Everyone knows that as a practical matter these lawyers would have defended the case in the same manner, regardless of which insurance company it was representing. Certainly, there is no showing that they would have made a better job of it had they been acting for Aetna rather than Maryland.
Upon the record before us I am of opinion that Maryland is entitled to recover of Aetna the amount claimed.
Miller, J., concurs in this dissent.