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Hartford Accident and Indemnity Company v. Wainscott

Supreme Court of Arizona

March 1, 1933

HARTFORD ACCIDENT AND INDEMNITY COMPANY, a Corporation, GUARDIAN INSURANCE AGENCY, INCORPORATED, a Corporation, PHIL C. ENSIGN, BUD AUSTIN and H. C. GILBERT, Appellants,
v.
R. T. WAINSCOTT, Appellee

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment affirmed.

Messrs. Baker & Whitney and Mr. Lawrence L. Howe, for Appellants Hartford Accident & Indemnity Company and Guardian Insurance Agency, Incorporated.

Mr. L. M. Laney, for Appellant A. G. Austin.

Mr. Frank H. Lyman, for Appellant H. C. Gilbert.

Mr. Henry J. Sullivan, for Appellant Phil C. Ensign.

Mr. L. C. McNabb and Mr. O. B. DeCamp, for Appellee.

OPINION

[41 Ariz. 441] LOCKWOOD, J.

R. T. Wainscott, hereinafter called plaintiff, brought suit against Hartford Accident & Indemnity Company, a corporation, Guardian Insurance Agency, Incorporated, a corporation,

Page 329

Phil C. Ensign, Bud Austin and H. C. Gilbert, hereinafter called defendants, under the provisions of sections 790 and 791, Revised Code of 1928, to recover from them certain sums of money paid by the individual defendants, who were at the time of payment the members of the board of supervisors of Maricopa county, out of the county treasury to the other defendants for premiums on policies of insurance covering the county's entire fleet of motor vehicles and protecting the county against any loss by fire or theft or liability for damage to property or persons.

There are four causes of action set up in the complaint, covering premiums paid at different times. Defendants demurred on the ground that the statute of limitations had run and that the complaint did not state a cause of action. There was also a general denial, and the statute of limitations was pleaded in bar. The court overruled the demurrers, but finally sustained the plea of statute of limitations as to the first, second and third causes of action, and rendered judgment in favor of plaintiff on the fourth cause, and, after the usual motion for new trial had been overruled, this appeal was taken.

[41 Ariz. 442] There are six formal assignments of error, but we will consider them in accordance with the legal propositions raised thereby. The suit was brought under sections 790 and 791, Revised Codes 1928, which provide that, "whenever a board of supervisors shall, without authority of law, order any money paid out of the county treasury for any purpose, . . . " any taxpayer may under certain circumstances bring suit to recover such amount from the supervisors and the parties to whom the money was paid, together with certain statutory penalties.

Most of the facts necessary to a determination of the case are not in dispute, and we state them as follows, leaving any controverted issues to be taken up as necessary: Maricopa county is the owner of a large number of motor vehicles which were used by the county for various purposes. The board of supervisors, believing it to be in the interest of the county to do so, insured these vehicles with the defendant corporations against fire and theft and also against "public liability and property damage." These last elements are for injuries caused by negligence in the use of the motor vehicles, and the liability of the insurer is stated in the policy as follows:

"Section I -- Public Liability. To pay within the limits specified in the declarations, any loss by liability imposed by law upon the assured for such bodily injuries or death (excluding loss by liability accepted by the assured, in contract or otherwise, or under any Workmen's Compensation Law, or loss by injury to or death of any ...


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