" '[a] judgment on the merits, fairly rendered, by a court of competent jurisdiction, having cognizance both of the parties and the subject matter ... is conclusive on the parties and their privies until reversed or set aside in a direct proceeding for that purpose and is not amenable to collateral attack' "
How later courts described this case
- " '[a] judgment on the merits, fairly rendered, by a court of competent jurisdiction, having cognizance both of the parties and the subject matter ... is conclusive on the parties and their privies until reversed or set aside in a direct proceeding for that purpose and is not amenable to collateral attack' "
- "The legislation having been enacted for the benefit of the injured parties, it is to be liberally construed so that the purpose intended may be accomplished.”
- interpreting previous version of Section 38.2-2200
- “it is clear that an injured party is a beneficiary under die policy from the moment of injury • • • •
Written by the judges who cited it.
The opinion
*139 Hudgins, C. J.,
dissenting.
The insurance policy involved is a contract between the insured and the insurer wherein the obligations of each party to the other are definitely stated, with certain limitations and conditions affecting the validity of the contract and the rights of each under it. The statutes (Code, §§ 38.1-380 and 38.1-381) do not contravene or void any of the limitations or conditions stated in the insurance contract. These statutes merely provide that, if the contract is valid and in force as between the parties to it at the time of the accident, an injured third party may maintain an action on the contract against the company, provided that such third party has obtained a judgment against the insured for the injury sustained and an execution on the judgment has been returned unsatisfied. Code, § 38.1-380 provides that such an action may be maintained against the insurer on the judgment “under the terms of the policy or contract for the amount of such judgment not exceeding the amount of the applicable limit of coverage under the policy or contract.”
The judgment upon which this action is based is not against the named insured, Martha Virginia Olsen, or a party operating the automobile with her permission expressed or implied. It conclusively appears in the record of the action between Goodwin and the insurance company that Goodwin, who was operating the automobile at the time of the accident, was not the insured and not otherwise covered by the policy. The right of the injured plaintiff to maintain this action is derived from and through Goodwin and can rise no higher than his rights under the policy. If, in the action between Goodwin and the insurance company, it had been judicially determined that Goodwin was insured at the time of the accident, the company would have been precluded from litigating that issue in this action. Wright v. Schick, 134 Ohio St. 193 , 16 N. E. 2d 321 , 121 A. L. R. 882, and authorities cited in the appended annotation.
It would be inconsistent to hold that an adverse judgment was conclusive and binding upon the insurance company and that a judgment favorable to the company was not binding upon the insured and those claiming through him.
In Conold v. Stern, et al., 138 Ohio St. 352 , 35 N. E. 2d 133 , 137 A. L. R. 1003, Charles Luntz was killed and Helen Conoid injured when an automobile driven by Carl Stern, upon which he held a liability insurance policy, collided with another vehicle. Luntz’ ex *140 ecutors recovered judgment against Stem for decedent’s wrongful death. Under a statute quite similar to §§ 38.1-380 and 38.1-381, Code 1950, the executors then sued the company that carried the liability insurance on Stern’s car. The company defended on the ground that there was no coverage because of the breach by Stern of the cooperation provision in the policy and judgment was awarded in its favor.
Helen Conold, having also recovered judgment against Stem for personal injuries, instituted action against the insurance company on the policy. As a defense the company interposed the judgment rendered in its favor in the action brought by Luntz’ executors and asserted that it was res adjudicata of plaintiff’s claim. In sustaining that defense, the court, at 137 A. L. R., page 1012, said:
“Res adjudicata or estoppel operates not only between parties to an action but between parties, and others not parties, as to the derivative rights of the latter which flow from those who were adversary parties in the action. * * *”
In State Farm, etc. Ins. Co. v. Arghyris, 189 Va. 913 , 55 S. E. 2d 16 , judgments were recovered against Dennis R. Bohler by Nicholas A. Arghyris, an infant, and by his father, Christ Arghyris, for damages resulting from an automobile accident. In actions brought by the two judgment creditors against State Farm Insurance Company, liability insurer of the automobile involved in the accident, the company defended on the ground that insured, Bohler, had violated the cooperation provision in the policy. Judgments against the company were awarded in the trial court. However, upon appeal it was held that Bohler’s clear and deliberate violation of the conditions of the policy relieved the company of liability to him, and as he had no rights under the policy against the company, plaintiffs had none. In reversing the judgment, we said:
“The company had no contract with Arghyris or his son. They claim through Bohler, have his rights and are under his disabilities. Bohler must have done those things which he contracted to do before he had a right to recover against the company. If Bohler had no such right, Arghyris and his son were without right. Hunter v. Hollingsworth, 165 Va. 583, 589 , 183 S. E. 508 .” 189 Va. at page 922 .
There was no collusion in the action brought by Goodwin against the company. He and the company then occupied antagonistic and adversary positions, and the issue was squarely put of whether or not he was driving the vehicle with the permission of the owner, express *141 or implied, and thus an insured under the policy and statute. That issue was resolved adversely to him and binds him and those who derive their rights through him.
In the case brought by plaintiff against the company, she claims under the same policy. She has no contractual or statutory rights against the company except through Goodwin. Her rights against the company could not arise until she secured judgment against Goodwin and then such rights would be wholly dependent upon his status under the policy, which has been judicially determined to be not that of an insured.
The rugged statement in the majority opinion that, “In this battle royal all combatants are at least entitled to be in the ring when the bout begins,” is catchy and appealing, but it creates an erroneous impression of the law. Plaintiff in this case was represented by Goodwin in the “ring” when the “battle royal” began; she now desires to fight the same battle with the victor who defeated her representative. This is contrary to the accepted Marquis of Queensberry rules. Furthermore, she had no right to enter the “ring” in person, against the insurance company, until she had been successful in an independent “bout” with an insured.
I think the judgment of the trial court should be affirmed.