I do not concur in reversal.
Anne Kosanic, plaintiff herein, had an automobile insurance policy issued by the defendant insurance company, in which the defendant agreed to defend any suit against her arising from the ownership of the insured vehicle; second, to pay any damages for personal injury to others up to a certain amount; and, third, to pay to plaintiff the damages to her car resulting from collision.
Plaintiff Kosanic had a collision and was sued by Mrs. Hatfield. The insurance company refused to defend the suit and Kosanic spent $275 attorney fees in doing so. Mrs. Hatfield got a judgment against Kosanic and garnisheed the insurance company, under the statute, on the policy. The insurance company filed a disclosure denying liability. The garnishment case was tried and Mrs. Hatfield got a judgment against the insurance company for the full amount of the insurance company's liability for personal injuries to any one person, which the insurance company paid. Mrs. Hatfield's husband was also injured in the same collision, sued Anne Kosanic, got a judgment against her, and the insurance company paid this also. Then Kosanic, in the case now before us, sued the insurance company to recover the $275 she had paid in defending the Hatfield suits, and also to recover the damages to her automobile. Kosanic had judgment for $785.95 from which the defendant insurance company appeals. Only one question is presented for decision. *Page 26
Justice SHARPE writes for reversal, on the ground that plaintiff Kosanic is trying to split her causes of action and that she cannot recover. The effect of such a holding would be that when the insurance company has been garnisheed and compelled to pay the damages for personal injuries sustained by someone which arise out of a collision with a car insured by the company, and for nothing else, the insurance company's liability is at an end and the insured cannot recover against the insurance company for the damages to her own car or for her expense of defending the lawsuit, although admittedly both these items are covered by other separate and distinct provisions in the policy.
The fallacy in this argument lies in the fact that Kosanic's right of action against the insurance company is entirely independent of the Hatfields' right of action against her. Kosanic was not a party in Hatfield's garnishment suit against the insurance company. Nor, as will be pointed out, was the subject matter of her present suit litigated in the garnishment suit. She now sues the insurance company on her contract of insurance whereby the insurance company separately agreed to defend her in the litigation with Hatfield, and also separately agreed to pay her the damages to her automobile arising out of collision. The liability of the insurance company for these two items is over and above its liability to pay $5,000 on the judgment obtained by Hatfield against her for personal injuries arising out of her negligent operation of her automobile, which was the only subject matter litigated in the garnishment suit.
Kosanic is not barred from recovery against the insurance company on her policy for the damages to her automobile and her expenses of the litigation with Hatfield on the theory that she is splitting her causes of action. Certainly she had no cause of *Page 27 action against Hatfield in which she, Kosanic, could recover from Hatfield for her attorney fees that she spent in defending the very suit that Hatfield brought against her. Neither could she recover against Hatfield for the damages to her own car, after Hatfield had recovered her damages against Kosanic on the theory that Kosanic was negligent. But the defendant insurance company contracted to pay these items to plaintiff, and the amounts are not here in dispute.
We are not called upon to consider whether Hatfield may have a second garnishment proceeding against the insurance company for any further sum the insurance company may be found to owe the plaintiff. In the garnishment suit the insurance company denied liability to the plaintiff in toto. There was no disclosure by the defendant insurance company admitting liability for money or debt then due, or to become due, to plaintiff herein under the policy. In the garnishment suit Hatfield recovered from the insurance company $5,000, the full amount of the company's agreed liability for personal injuries to any one person. The company also paid Mr. Hatfield a lesser sum, because of its liability in any one accident not to exceed $10,000. That does not relieve the insurance company from reimbursing plaintiff for her expense of defending Hatfield's suit, and for the damages to her automobile, both of which items the insurance company agreed to pay plaintiff under other provisions in its policy, separate and distinct from its liability to pay personal-injury damages. The record before us indicates that the insurance company in filing disclosure in the garnishment suit did not disclose any liability to plaintiff herein for attorney fees, or for damages to her automobile by collision. The insurance company, in the garnishment suit, denied liability in toto, and *Page 28 did not pay over to Hatfield as garnishee plaintiff any sums it might owe plaintiff herein for attorney fees or damages to her automobile. Had it disclosed such liability either due, or to become due, to Kosanic and been compelled to pay the same, there would be more merit to the defense interposed by the insurance company in the present case that plaintiff was splitting her causes of action, and that the insurance company should not now be held twice liable, first to Hatfield in the garnishment suit, and, a second time, to plaintiff herein for payment of her attorney fees and the damages to her automobile. The insurance company cannot now enrich itself by taking advantage of its failure to disclose its full liability in the garnishment suit and in that way escape its liability under the insurance contract to pay plaintiff's attorney fees and damages to her automobile under its contract of insurance.
The judgment for plaintiff must be affirmed, with costs.
BUTZEL, C.J., and CARR, BUSHNELL, REID, NORTH, and STARR, JJ., concurred with BOYLES, J. *Page 29