
    Edgar N. Suttles, Respondent, v. Railway Mail Association, Appellant.
    Fourth Department,
    April 30, 1913.
    Insurance — breach of contract of accident insurance — defense — evidence— prior recovery by plaintiff from third party.
    A contract between a railway postal clerk and a railway mail association providing that, if the clerk should receive bodily injuries during the continuance of a certificate issued to him, through external, violent and accidental means, which should wholly and continuously disable him from following the occupation of a railway postal clerk, he should be entitled to receive from the association’s benefit fund a sum not exceeding fifteen dollars per week, “ for loss of time resulting from bodily injuries effected through the means aforesaid,” is not a contract for indemnity only.
    Hence, in an action on such contract, it was not error to refuse to allow the defendant to prove, as a defense, that the. plaintiff had already received, in full settlement of an action which he had previously brought against a railroad company which caused the injury, a sum in excess of the amount of his claim against the defendant.
    Appeal by the defendant, the Railway Mail Association, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 11th day of December, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.
    
      Hiram Wooden [H. Bradley Carroll, attorney], for the appellant.
    
      Walter I. Scott, for the respondent.
   Robson, J.:

Defendant has been cast in damages for the breach of an agreement with plaintiff, which provided for a good consideration therein expressed that if plaintiff should receive bodily injuries during the continuance of the certificate issued by it to him, through external, violent and .accidental means, which should wholly and continuously disable him from following the occupation of a railway postal clerk, he should be entitled to receive from defendant’s benefit fund a sum not exceeding fifteen dollars per week “for loss of time resulting from bodily injuries effected through the means aforesaid. ” The single point made by appellant is that, although the defendant may have been proved to be otherwise liable, yet as it was not on the trial permitted to assert and prove as a defense to the action the fact that plaintiff had already received in full settlement of an action which he had theretofore brought against the railroad company, which he alleged negligently caused the injury, a sum considerably in excess of the amount of his claim against this defendant and had thereupon given the railroad company a general release of his claim, reversible error was committed and a new trial must be had.

Defendant claims that this accident insurance, contract is, . like contracts for fire or marine insurance, one of indemnity only; and that, if liability to pay thereon arose by reason of injury occasioned by the negligent act of a third person, it would on payment. of the amount required by its contract be entitled to be subrogated to the extent of such payment to any right of action for the loss or injury' which plaintiff had originally against the wrongdoer who.caused it.

It is true that this stipulated sum which plaintiff seeks to recover in this .■ action is later in the insurance certificate referred to as a weekly indemnity. But this use of the term “ indemnity ” as the correspondent or equivalent of a payment under the contract can mean no more than that such payment is to be regarded as compensation for the damage to plaintiff’s insurable, interest, which the defendant by its contract agrees to pay at the rate and to the amount stated in the certificate. Calling, the payments an indemnity is a mere matter of nomenclature and does not affect the substance of the contract nor change its legal effect. Appellant’s counsel does not question this, for he says: “Although the policy here refers to the sum payable as weekly indemnity, what the parties choose to call it is not determinative of the nature of the contract.”

The question is then, Is this contract for accident insurance one for indemnity only %

The theory and basis of the right of the insurer to subrogation is that the insured has a claim against a third person which he could enforce for the loss insured against. But, although the assured may be able to recoup his loss, partially or in full, by enforcing some contract, or other right, he may have, which is not dependent upon the direct responsibility of such person for the loss insured against, that fact does not clothe the insurer with the right of subrogation thereto, at least in the absence of an agreement in the policy to that effect. Even in fire insurance contracts, recognized, as they are, to be indemnity contracts, it does not follow in all cases where there has been a loss that the insurer is entitled to be subrogated to every means available to the insured for recouping his loss. Examples of such cases are Foley v. Manufacturers’ Fire Ins. Co. (152 N. Y. 131); Michael v. Prussian Nat. Ins. Co. (171 id. 25). These cases illustrate and apply the principle as to the right.of subrogation, which I have sought to state above.

It follows that, treating defendant’s contract liability as that of an indemnitor, if the loss insured against is not the same loss for which plaintiff had a right of action against the wrongdoer, defendant had no right of subrogation to such claim. Referring again to the certificate of insurance issued to plaintiff it will be seen that defendant in terms insured him for total disability due to bodily injuries caused by external, violent and accidental means, by reason of which he might be prevented from performing his duties as mail clerk. Under the express terms of his contract plaintiff was entitled to recover, at the rate fixed, for the disability resulting in loss of time, regardless of the pecuniary loss he might sustain. It was not the loss of earning capacity, loss of wages, nor the pain or personal disfigurement resulting from the injury, nor neces-' sary expenses for medical or hospital attendance, that were to be covered by the insurance. Though his wages might continue, as. they did in this case, to be paid by his employer during the period of his disability, though the pain or personal disfigurement might have been much or little, though the bills for hospital and medical service might have been large, or, on the other hand, merely nominal, yet if such disability resulted in continuous loss of time, the contract required payment of the stipulated weekly sum. But it is these very matters that are not within the contract of insurance, which are the basis of an award of damages against the negligent author of the injury. For that .reason it would seem that, defendant had no right of subrogation to plaintiff’s claim against the wrongdoer.

But we are further of the opinion that an accident insurance contract is not an indemnity contract., As was written in Gatzweiler v. Milwaukee Electric R. & L. Co. (136 Wis. 34), in which case the court was concerned in determining the quality of a similar contract for accident insurance: “A policy of casualty insurance, ordinarily has much the same features as one of life insurance,' though it is true it more nearly than one of life insurance has the indemnity feature. The amount stipulated to be paid is a fixed sum as to each particular injury specified or is computable without any such definite data as in case of the loss of property.” The opinion concludes: “That such a policy is an investment contract giving to the owner or beneficiary an absolute right, independent of the right against any third party responsible for the injury covered by the policy; that if such a company desires protection against loss caused by the wrongs of third persons who would ordinarily be liable, they must do so by the contracts they make; that in the absence of a feature expressly making the policy of insurance an indemnity contract it should not be regarded as such, but held to be an investment contract in which the only parties concerned are the insurer and the assured or the beneficiary.” In the opinion in the foregoing case, Ætna Life Ins. Co. v. Parker & Co. (96 Tex. 287) is cited and followed. In the latter case the Texas Supreme Court adopted the opinion of the lower court (30 Tex. Civ. App. 521), and in addition said upon this point: “That so far as the right of subrogation is concerned accident insurance is more analogous to life insurance than it is to either marine or fire insurance; and it has been held that it does not apply in case of life insurance,” citing Bradburn v. Great Western R. Co. (L. R. 10 Ex. 1; S. C., 23 Wkly. Rep. 48). In the case last cited, as reported in the Weekly Reporter, it is said: “If a man is injured on a railway through the company’s negligence he is not to have less because he has insured himself against accident. He pays his premiums in order to get back an equivalent; and if he is liable to have the amount of his insurance deducted he loses the benefit of the premiums paid. It is said that he is only actually damaged beyond the amount of the insurance but according to Dalby v. The India and London Life-Assurance Co., 3 W. R. 116, 15 C. B. 365, insurance is not a contract of indemnity. The plaintiff is entitled both to the insurance money and compensation.' He gets his insurance money under a contract as a quid pro quo, having paid his premiums for it; and he is entitled besides to compensation from the company for the legal injury they have committed.” The application to have the verdict recovered against the railway company because of personal injuries through the company’s negligence reduced ' by the amount theretofore recovered by plaintiff on a contract for accident insurance was denied. It is true that the case last referred to did not involve the determination of the same question now before us; but the opinion clearly indicates that a contract for accident insurance was considered by the court, not as an indemnity contract, but like life insurance as one of investment only. The case cited in the opinion supra, is the case which finally determined that a policy of life insurance is an investment and not an indemnity contract. Other cases might be cited containing similar expressions of opinion though decision of the question we are now considering was not directly involved. Our attention has not been called to any case deciding that accident insurance is an indemnity contract. Some general statements to that effect have been made by text writers, but they do not seem to be supported by authority. Some expressions found in the opinion in Travelers’ Ins. Co. v. Great Lakes Engineering Works Co. (184 Fed. Rep. 426) are pointed to by appellant’s counsel as indicating that accident insurance is a contract of that kind. ' But the court in that case was considering an employer’s, liability policy and these expressions were obiter.

The judgment and order should be affirmed,, with costs.

All concurred.

Judgment and order affirmed, with costs.  