Carne v. Maryland Cas. Co.
| Decision Date | 05 May 1961 |
| Citation | 12 McCanless 403,208 Tenn. 403,346 S.W.2d 259 |
| Parties | , 208 Tenn. 403 Ruth J. CARNE, Administratrix of the Estate of Dr. John E. Carne, v. MARYLAND CASUALTY COMPANY. |
| Court | Tennessee Supreme Court |
Weakley & Weakley, Dyersburg, for plaintiff in error.
Heathcock, Elam & Cloys, Union City, for defendant in error.
This suit in its final analysis is brought to recover excess over the policy limits of an automobile liability insurance policy. The trial judge sustained the plea in abatement on the ground that the cause of action did not survive. The plaintiff below has appealed, and counsel presented a learned and extended argument in which, conceding, as we understand it, that the recovery sought is in excess of the provision in the policy covering property damages.
The defendant in error issued to the plaintiff's intestate an automobile liability policy which protected the intestate for damages growing out of an accident. The policy had the limits of $10,000 for each person and $20,000 for each accident resulting in bodily injuries, and $5,000 for damages to property of other persons. The intestate had an accident in which two persons were injured and the property of another was damaged. Regarding the personal injury suits, one was settled out of court, and the other after final litigation was settled by the defendant in error paying $10,000 for the personal injuries and paying $1,350 on the property damage. This was the value fixed for the propery damages by the Court of Appeals in the case of Spence v. Carne, 40 Tenn.App. 580, 292 S.W.2d 438. The balance of the judgment of that court of $2,462.70 was for medical expenses, etc. The defendant in error refused to pay this balance, and it was finally settled by the plaintiff in error's intestate, and it is for this difference plus attorney's fees, etc., that the instant action is brought.
In the very well-drawn declaration the plaintiff's intestate sues the defendant 'for damages resulting from defendant's negligence and bad faith and from defendant's breach of its obligations and duties under its automobile liability insurance contract with her intestate, Dr. John E. Carne, and for her cause of action says.' Upon reading and re-reading the entire declaration it is seen that the quotation, just quoted, is the gravamen of the declaration. In other words, the declaration is bottomed on the same averments and allegations as to the cause of action as those as set forth in Southern Fire & Casualty Co. v. Norris, 35 Tenn.App. 657, 250 S.W.2d 785 ().
In the able brief of counsel it is attempted to base this suit on a breach of contract and in effect to waive the tort therein alleged and sue in assumpsit very much as was done in such cases as Baker v. Huddleston, 62 Tenn. 1, and others, wherein the tort was waived and the suit was for either the recovery of the property or certain specific items of money, etc., in a contract out of which the tort grew. The declaration herein though does not state in any particular that tort is waived and that the suit is based upon any particular contract other than the contract of insurance, wherein it is, by reason of not mentioning the fact, in effect conceded that the recovery sought is in excess of the provision of the policy for the payment of sums not contracted for in the policy. Of course, such a suit, and the basis for liability thereon, arises out of a contract but they are ex delicto nevertheless. This being true, we are confronted with the proposition that this is the kind of lawsuit which is based upon bad faith. That is the gist of the present controversy where 'the issue is one sounding in tort.' Tennessee Farmers Mutual Insurance Co. v. Hammond, 200 Tenn. 106, 112, 290 S.W.2d 860, 862.
'Negligence and bad faith' are tort actions for the commission of the acts by one accused of either being negligent or exercising bad faith in the carrying out of their contract. In Southern Fire & Casualty Co., supra [35 Tenn.App. 657, 250 S.W.2d 790], the court said: 'The courts seem to be unanimous in holding an insurer liable in tort for an excess over the policy limit where as here it has exclusive control over investigation and settlement of claims and its refusal to settle within the policy limit is fraudulent or in bad faith.' We have investigated many authorities on the subject, some of which are collected and cited in the Southern Fire & Casualty Co. case and we find except in a minority of the cases that this is true. This principle though seems to be sound and is one that is followed by this Court. See Tennessee Farmers Mutual Insurance Co. v. Hammond, supra.
In the present case Dr. Carne, the insured, died after this automobile accident and before instituting any suit herein. The tort or wrong that he claims...
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