Gray v. Houck
| Citation | 68 S.W.2d 117 |
| Parties | GRAY v. HOUCK. |
| Decision Date | 24 February 1934 |
| Court | Tennessee Supreme Court |
Jordan Stokes, Jr., of Nashville, and J. C. R. McCall, Jr., of Huntingdon, for plaintiff in error.
Walter Stokes and Lindsey M. Davis, both of Nashville, for defendant in error.
This is an action for damages for personal injuries suffered in an automobile accident. The defendant, Houck, left the state before service could be had upon him, and jurisdiction is asserted in this action, begun several years later, by petition for attachment by garnishment of the Travelers' Insurance Company, as the debtor of the defendant.
Such process is authorized by statute in behalf of a tort claimed against one who is "indebted" to the defendant. Code, §§ 9397, 9428.
The circuit court concluded, from the averments of the petition and affidavit for attachment, that the insurance company is not indebted to the defendant, within the sense and meaning of the attachment and garnishment law, and for that reason denied the attachment and dismissed the suit. The plaintiff has appealed in error.
The petition and affidavit for attachment avers that the defendant inflicted the injuries complained of while driving his automobile, in the use of which he was protected by a contract of liability insurance issued to him by the Travelers' Insurance Company, copy of which is exhibited. It is asserted in the petition that the defendant's "contract right to require the Travelers' Insurance Company to pay the sum which he shall become obligated to pay by reason of a judgment in this suit is property subject to attachment by garnishment in this case."
The exhibited contract of insurance binds the insurer "to pay on behalf of the assured all sums which the assured shall become obligated to pay by reason of the liability imposed upon him by law for damages," etc., and authorizes suit on the contract by any person "who shall obtain final judgment against the assured" enforcing liability covered by the contract. It contains the usual provisions binding the insurer to defend actions against the insured, etc.
The contract contains the further stipulation:
"No recovery against the Company shall be had until the amount of the Assured's obligation to pay shall have been finally determined either by judgment against the Assured after actual trial or by written agreement of the Assured, the claimant, and the Company, nor in either event unless suit is instituted within two years after the date of such judgment or written agreement."
The contract thus pleaded is clearly one of indemnity against liability, but by the clause last quoted the obligation of the insurer to pay and satisfy claims made against the insured arises only when such claims are matured by judgment or by written agreement of the parties interested, including the insurer. The language of the contract is that "no recovery against the company shall be had" until the amount of the insured's liability shall have been determined by judgment or written agreement. A right of recovery is obviously essential to a right of action, so that, by the terms of the contract, the insured has no right of action for the indemnity stipulated, in the absence of judgment against him or an agreement fixing the amount of plaintiff's damages. The existence of such right of action is therefore contingent upon the rendition of judgment against the insured, the defendant to plaintiff's action for damages. That such event is uncertain and contingent is at least indicated by the plaintiff's inability to obtain service of process on the defendant, by reason of the defendant's nonresidence.
In so far as the facts are disclosed by the pleadings before us, to sustain the garnishment in this case would subject the garnishee to a liability to which otherwise it could never be called upon to respond. It is said on the brief of the plaintiff that the defendant has probably resided in the state of his present residence long enough to successfully plead the statute of limitations to any action brought against him by plaintiff in that state. In this situation, the plaintiff is met by the general rule that "plaintiff is not to be placed in any better position, nor the garnishee in any worse position, than he would be if defendant...
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