
    INSURANCE.
    [Cuyahoga (8th) Circuit Court,
    February 10, 1910.]
    Marvin, Winch and Henry, JJ.
    
      Moses Garrett v. Travelers Insurance Co.
    Injured Employe not Subrogated to Rights of Policy Holder.
    When insurance is only against loss from liábility incurred by the party insured to an injured employe, the latter can not be subrogated, in case of the former’s insolvency, to the policy holder’s right to indemnity in whole or in part.
    Error.
    W. C. Ong, for plaintiff in error.
    
      Hoyt, Dustin, Kelley, McKe,eh,cm & Andrews, for defendant in error.
    
      
      Affirming Garrett v. Traveler’ Ins. Co., 20 Dec. 181 (9 N. S. 412).
    
   HENRY, J.

The parties stand as they stood below. There the action was upon a policy, of employer’s liability insurance issued by the Travelers Insurance Co. to John Miller & Co., in whose employ Garrett was injured, under circumstances which brought his ease within the terms of the policy. He had previously recovered a judgment of $500 against his employer for said injury, but the judgment debtor has meanwhile become utterly insolvent, so that nothing cam be collected directly upon the judgment; hence Garrett sues upon said policy which insured John Miller & Co. against loss from liability in damages for injuries to their employes.

This case is to be distinguished from those in which the contract of insurance is against liability instead of merely against loss from liability as here. When this distinction is observed we find but one case which squarely supports the plaintiff’s theory, Sanders v. Frankfort M. A. & P. G. Ins. Go., 72 N. H. 485 [57 Atl. 655; 101 Am. St. 688]. The overwhelming weight of authority is to the contrary. Connolly v. Bolster, 187 Mass. 266 [72 N. E. 981]; Cushman v. Carbondale Fuel Co., 122 Ia. 656 [98 N. W. 509]; Allen v. Gilman McNeill & Co., 137 Fed. 136; Allen v. Aetna Life Ins. Co., 145 Fed. 881.

Upon the authority of these and many other decisions to the same effect, as well as upon principle, we hold that no action lies upon a policy insuring against loss from liability until the loss contemplated is sustained by the party, insured. But when the insurance is against liability incurred by the party insured to an injured employe, the latter may undoubtedly be subrogated in ease of the former’s insolvency to the policy holder’s right to indemnity in whole or in part, as circumstances may warrant, but such is not this case, and the judgment is affirmed.

Marvin and Winch, JJ., concur.  