EMPLOYERS'LIABILITY ASSUR. CORPORATION v. Bodron, 6837.
| Decision Date | 03 June 1933 |
| Docket Number | No. 6837.,6837. |
| Citation | 65 F.2d 539 |
| Parties | EMPLOYERS' LIABILITY ASSUR. CORPORATION, LIMITED, OF LONDON, ENGLAND, v. BODRON. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Chas. F. Engle and S. B. Laub, both of Natchez, Miss., for appellant.
A. A. Chaney, and J. H. Culkin, both of Vicksburg, Miss., for appellee.
Before BRYAN, FOSTER, and HUTCHESON, Circuit Judges.
Appellee recovered judgment in a Mississippi state court against Joseph T. Nosser on the ground of his negligently driving his automobile and injuring her while she and others were riding with him by his invitation. Appellant defended the action pursuant to a policy it had issued to Nosser, by the terms of which it agreed to defend in the name of the assured suits brought against him for damages on account of accidental injury resulting from the operation of his automobile. An appeal was taken to the Supreme Court of Mississippi, but without supersedeas bond, and that court affirmed the judgment. Before the time allowed for a petition for rehearing had expired, appellee sued out a writ of garnishment against appellant. The latter removed the proceeding against it to the federal court, where a trial before the district judge without a jury resulted in a judgment against appellant as garnishee for the amount of liability named in the policy.
This last-named judgment appellant seeks to reverse on two principal grounds. The first is that the writ of garnishment did not lie because it was sued out prematurely, and also because appellant could be held liable only in an independent action after Nosser had paid the judgment against him, and this he had not done. Supersedeas was not granted because a supersedeas bond was not given. The judgment therefore was enforceable even before the Supreme Court affirmed it, and so the plaintiff in execution was not bound to await a denial of the petition for rehearing. A clause of the policy bound the insurer to settle all pertinent claims resulting in liability. 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. The other ground of defense is that the insurer was not liable because Nosser failed to comply with a clause of the policy which bound him to render to the insurer "all co-operation and...
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