
    Carl E. Anderson vs. American Automobile Ins. Co.
    No. 78967.
    March 23, 1929.
   TANNER, P. J.

Tbis is an action of debt on judgment alleging that tbe defendant bad insured one Henry C. Miller against accident liability and that tbe terms of tbe .policy included anyone wbo was operating tbe automobile with tbe permission of tbe assured ; that tbe plaintiff obtained judgment against one Wilcox, wbo was operating with tbe permission of tbe said assured, on account of an accident caused by said Wilcox to said plaintiff in operating tbe automobile described in tbe defendant’s policy of insurance; that plaintiff secured judgment against said Wilcox in tbe sum of $50,000 on account of injuries so suffered and that said judgment remains in full force and virtue, and that said action is brought by virtue of See. 7, 'Chapter 258 of tbe General Laws of 1923.

Tbis declaration is demurred to, first, on tbe ground that it does not appear in tbe declaration that an execution was issued on said judgment named in tbe declaration and returned unsatisfied.

Demurrer upon tbis ground is overruled.

We do not think it is necessary to allege more than tbe declaration has alleged on tbis point.

Tbe declaration on tbis point is in accordance with tbe precedents. Tbe allegation that execution has been returned unsatisfied is one that is used in bills in equity to establish tbe equity jurisdiction by showing that tbe remedy at law has been exhausted. As tbis is an action at law it is unnecessary to add this allegation.

The next ground of demurrer is that tbe declaration does not allege that said Wilcox or Miller has performed all tbe terms, conditions or provisions of the policy of insurance alleged to have been issued by tbe defendant to said Miller.

If tbe policy bad been properly •brought before tbe Court and it revealed that there were any conditions precedent to the accrual of action, we think tbis demurrer would be good.

Stacey vs. Fidelity & Casualty Co., 114 Ohio St. 633;

Williams vs. Nelson, 228 Mass. 191.

In tbe cases just cited tbe non-performance of conditions precedent were alleged in defence and it did not appear that any allegations of performance bad been made by tbe plaintiffs in either of tbe cases. If the defendant bad demurred because of tbe failure to make profert of the policy or excuse for not making profert, tbe Court could have sustained tbe demurrer for lack of profert if no excuse were made, and if excuse were made that the plaintiff couldn’t make profert, tbe defendant might invalidate tbis excuse •by offering a certified copy of tbe policy, upon which tbe plaintiff might have declared and the Court could then have sustained tbe demurrer if tbe policy revealed conditions precedent, which very likely it contained. Even if tbe defendant is ■ obliged to plead these conditions .precedent, it seems to us that be could still maintain that tbe burden of proof would 'be upon tbe plaintiff to establish performance of said conditions.

In tbis state of tbe pleadings, however, we feel obliged to overrule tbis cause of demurrer.

For plaintiff: William A. Gunning.

For defendant: Curran, Hart, Gainer. & Oarr.  