Artille v. Davidson
| Decision Date | 18 November 1936 |
| Citation | 170 So. 707,126 Fla. 219 |
| Parties | ARTILLE v. DAVIDSON et al. |
| Court | Florida Supreme Court |
Error to Circuit Court, Hillsborough County; L. L. Parks, Judge.
Action by John Edwin Artille, a minor, by Hazel Victoria Hudson next friend and guardian, against John Davidson and another. To review a judgment sustaining demurrers to the amended declaration, plaintiff brings error.
Modified and as modified affirmed.
COUNSEL J. Tom Watson, of Tampa, for plaintiff in error.
McKay Macfarlane, Jackson & Ramsey, of Tampa, for defendants in error.
The plaintiff in error sued the defendants in error and the judgment was on demurrers sustained to an amended declaration.
The plaintiff's cause of action was based upon injuries alleged to have been received in an automobile accident. The automobile which is alleged to have caused the injury was owned by John Davidson and was then being operated by his grand-daughter, with his knowledge and consent. The declaration states a good cause of action against John Davidson. It is not necessary for us to discuss the original declaration. The amended declaration is in two counts, in each of which counts the plaintiff declared against John Davidson as owner of the automobile and against the Employers Liability Assurance Corporation, but in its allegations in regard to the Employers Liability Assurance Corporation, which will hereinafter be referred to as the Insurance Company, it was nowhere alleged that the Insurance Company had any interest in or any control over defendant's automobile, or that it in anywise whatsoever participated in the alleged tort. The Insurance Company is made a party to the suit and declared against because, as it is alleged, it was insurer of John Davidson 'against automobile collision liability and has issued to said assured an automobile liability and indemnity policy of insurance that is now and was on January 31, and February 4, 1935, in full force, in which it contracted and agreed to settle or defend against claims resulting from the liability imposed upon the insured by law for damages arising out of personal injuries resulting from bodily injuries accidentally sustained by any person as a result of the operation of said automobile of the defendant on public streets or highways.'
The insurance policy is not attached to or made a part of the declaration, but the plaintiff's right to maintain this action is based solely upon the theory that a certain automobile, while being operated on the public highway inflicted an injury upon the plaintiff; that the injury was inflicted by reason of negligence in the handling of the said automobile, and that the owner of the automobile at the time was the holder of a contract of insurance issued to him wherein the insurer agreed to 'settle or defend' (italics supplied) against claims resulting from the liability imposed upon the assured by law.
The plaintiff in error has cited many Florida cases in his brief but we think none of them are applicable to the question here involved. In this case we have a declaration sounding in tort as to one defendant and ex contractu as to the other defendant. No privity is shown between the plaintiff and the insurer. No allegations appear in the declaration sufficient to show that the insured at the time this action was brought was in position to maintain a suit against the insurer. There is no breach of contract alleged. It is not shown that this contract of insurance was a contract for the benefit of third parties, but, from the allegations of the declaration, it appears to have been a contract of indemnity for the benefit of the insured only, and measuring the contract by the allegations of the declaration, no right would accrue to the insured to maintain suit against the insurer until there had been a breach of the contract. ...
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Haven Federal Sav. & Loan Ass'n v. Kirian
...481 (Fla.1973), receded from on other grounds, School Bd. v. Price; Shingleton v. Bussey, 223 So.2d 713 (Fla.1969); Artille v. Davidson, 126 Fla. 219, 170 So. 707 (1936), aff'd, 129 Fla. 64, 175 So. 792 (1937). The legislation found substantive in VanBibber was enacted in response to these ......
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Hazen v. Allstate Ins. Co.
...relatively short-lived experiment with direct actions against insurers under Shingleton and Beta Eta House. See Artille v. Davidson, 126 Fla. 219, 170 So. 707, 708 (1936) (stating the rule of nonjoinder in the context of litigation involving an indemnity policy rather than a liability polic......
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Shingleton v. Bussey, 37636
...out of an automobile collision. We find conflict of decisions between the District Court's holding in this case and Artille v. Davidson (1936), 126 Fla. 219, 170 So. 707, and Thompson v. Safeco Insurance Co. of America (Fla.App.1967), 199 So.2d 113, and accept jurisdiction to review on Howe......
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Fincher Motor Sales, Inc. v. Lakin, 63-63
...companies to be parties to a law action brought against the assured for negligent operation of an automobile. See Artille v. Davidson, 126 Fla. 219, 170 So. 707; Jones v. United States Fidelity & Guaranty Co., N.D.Fla.1937, 19 F.Supp. 799. To the extent that facts relating to such insurance......