Commercial Cas. Ins. Co. v. Skinner

• Citation: 1 So.2d 225,190 Miss. 533
• Decision Date: 24 March 1941
• Docket Number: 34444.
• Court: United States State Supreme Court of Mississippi
• Parties: COMMERCIAL CASUALTY INS. CO. v. SKINNER.

1 So.2d 225

190 Miss. 533

COMMERCIAL CASUALTY INS. CO. v. SKINNER.

No. 34444.

Supreme Court of Mississippi

March 24, 1941

Forrest B. Jackson, J. W. Young, and Joe N. Friend, all of Jackson for appellant.

Hall & Hall, of Columbia, and G. M. Milloy, of Prentiss, for appellee.

ROBERDS Justice.

May 6 1939, Skinner recovered a judgment for $1,500 in the circuit court of Marion County against one Randall for personal injuries sustained in a collision between his automobile and a passenger bus owned and operated by Randall.

That judgment was affirmed on appeal to this court. See Randall v. Skinner, 187 Miss. 602, 192 So. 341.

The judgment was not paid and Skinner had a writ of garnishment issued thereon against appellant as the insurer of Randall as a common carrier.

After extensive pleadings, not necessary here to consider, and upon hearing and proof, the court below instructed the jury peremptorily to find for the plaintiff, which was accordingly done, and judgment was thereupon entered for Skinner against the appellant for the amount of the original judgment interest, cost, etc. From that judgment this appeal is prosecuted.

Appellant contends that its liability extended only to losses or damage actually sustained by the insured, and, since assured has suffered no loss or damage, the company even defending the original action, there is no liability. The case was tried below and is presented here on that theory. Both counsel admit that if the liability of the Insurance Company is only against loss actually sustained by Randall, the garnishment will not lie, and, conversely, if the obligation of the Insurance Company is more than that and amounts to insurance against liability, then the garnishment will lie. Both of these propositions are amply sustained by the authorities. The general rule is stated in 4 American Juris. p. 750, paragraph 314, as follows: "If a policy is treated as a contract of indemnity against liability, as distinguished from indemnity against loss actually sustained, the insurer is subject to garnishment by an injured person who has recovered judgment on a claim which is within the protection of the policy."

In the case of Employers' Liability Assurance Corporation v. Bodron, 5 Cir., 65 F.2d 539, 540, a case originating in Mississippi, Judge Bryan, speaking for the court, announced the rule as follows: "The policy was not one which provided for indemnity in case of loss. As the assured became liable by reason of the judgment against him, so did the insurer. If the policy be one of indemnity against liability as distinguished from indemnity against loss, the insurer is subject to garnishment by an injured person who has recovered judgment on a claim which is within the protection of the policy. 5 Couch on Insurance 4186; 28 C.J. 166." Many other authorities could be, but are not, cited because there appears to be no material disagreement in the cases on these propositions. Randall, as the operator of a public bus, was required to furnish "public liability or indemnity insurance" under Section 7124 of the Code of 1930, "covering injuries and damages accruing to persons or property, arising out of its operations as such transportation company."

On his behalf appellant, under date January 4, 1938, sent a telegram to the Mississippi Railroad Commission, reading as follows: "Please Accept This Telegram As Binding Bodily Injury And Property Damage Liability Insurance Coverages Conforming With Requirements Your Commission for J. B. Randall DBA Varnado Bus Line Effective January First. Policy To Be Filed Shortly. Please Wire Confirmation. Commercial Casualty Ins. Co."

Following this telegram appellant, on February 9, 1938, issued the present policy, which is dated January 1, 1938, for a period of one year, containing these provisions:

"Commercial Casualty Insurance Company-(A Stock Insurance Company Herein Called the Company)- Agreements-does hereby agree to indemnify the Insured, named in the Declarations made a part hereof and herein called the Insured, in consideration of the premium herein provided and of the statements contained in the Declarations and subject to the limits of liability, exclusions, conditions and other terms of this policy, against loss from the liability imposed by law upon the Insured arising from claims against the Insured for damages caused by accident growing out of the ownership, maintenance or use of any of the automobiles enumerated and described in Item 4 of the Declarations only while owned, maintained, used and operated for the purposes stated and subject to the limitations in Items 1 and 5 of said Declarations * * *."

"The Company shall not be liable to pay any loss nor shall any action be brought against the Company until final judgment shall be recovered against the Insured in the court of last resort.

The insolvency or bankruptcy of the Insured shall not release the Company for any payment for which it would be liable under this policy, and if such insolvency or bankruptcy shall occur and execution on a judgment recovered in a suit against the Insured covered by this policy is returned unsatisfied, the judgment creditor shall have a right of action to recover the amount of such judgment against the Company to the same extent that the Insured would have had to recover against the Company had the Insured paid the said judgment; but in no event shall the liability of the Company exceed the limits expressed in this policy. In no event shall any action be maintained against the Company under this policy unless brought within one year after Right of Action accrues; provided, however, that the minimum time set by the statutes of the state in which the Insured resides shall govern.

The Company does not prejudice by this condition any defenses against such action that it may be entitled to make under this policy."

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