United States Tube and Iron Company, Appellant, v. Maryland Casualty Company.
Insurance — Policy of indemnity — Satisfaction of judgment — Premature action.
Where a policy of indemnity contains a provision that no action shall lie against the indemnifying company, unless it shall be brought by the insured himself to reimburse him for loss actually sustained, and paid by him in satisfaction of a judgment within sixty days from the date of such judgment, an action brought two days before the satisfaction of a judgment against the plaintiff, is prematurely brought, and the plaintiff cannot recover therein.
Argued Nov. 1, 1907.
Appeal, No. 101, Oct. T., 1907, by plaintiff, from judgment of C. P. No. 2, Allegheny Co., April T., 1905, No. 366, for defendant non obstante veredicto in case of the United States Tube and Iron Company v. Maryland Casualty Company.
Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
Affirmed.
Assumpsit on a policy of indemnity.
At the trial it appeared .that a policy of insurance, indemni-. fying the assured against liability for injuries to employees, provided that no action should lie against the instfrance company unless brought within sixty days, after final judgment against the assured and payment and satisfaction of the same upon the record. Judgment was entered against the assured (the plaintiff and appellant in this action), on December 8, 1904. On February 4,1905, and within sixty days from the date of the judgment, suit was brought by the assured against the insurance company, and on February 6, 1905, the judgment satisfied on the record. The court on a reserved question held that the suit was prematurely brought, and for that reason directed judgment to be entered for the defendant.
Error assigned was in entering judgment for defendant non obstante veredicto.
A. C. Johnston, with him John F. Cox, for appellant.
*43O. P. Metcalf,\ with him William M. Hall, for appellee.
January 6, 1908 :
Per Curiam,
Judgment was properly entered for the defendant non obstante veredicto for the reason that no cause of action had arisen at the time tbe writ was issued. The policy of indemnity contains a provision that no action shall lie against the company as respects any loss under it unless it shall be brought by the insured himself to reimburse him for loss actually sustained and paid by him in satisfaction of a judgment within sixty days from the date of such judgment. This action was brought two days before the satisfaction of the judgment obtained in an action against the plaintiff, and it was prematurely brought.
The judgment is affirmed.