Melville Fuller

“ Although, in the order of ultimate liability, that of the carrier is in legal effect primary, and that of the insurer secondary, yet the insured can, in the absence of provisions otherwise controlling the subject, insist upon proceeding, under his contract, first, against the party secondarily liable, and when he does so is bound in conscience to give to the latter the benefit of the remedy against the party principal ”

“ This they did, and to their action in that regard the defendant is not so situated as to be entitled to object. In our judgment, the second defense, in any aspect in which it may be considered upon this record, cannot be maintained, and it follows that the action of the circuit court was erroneous. ”