Harpeth Valley Utilities Dist. of Davidson and Williamson Counties v. Due
| Citation | 3 Pack 181,465 S.W.2d 353,225 Tenn. 181 |
| Parties | , 225 Tenn. 181 HARPETH VALLEY UTILITIES DISTRICT OF DAVIDSON AND WILLIAMSON COUNTIES and Steel City Construction Company for the use and benefit of the United States Fldelity and Guaranty Company v. James P. DUE and James H. Campbell, partners, d/b/a Campbell and Due Contractors, or Campbell and Due Construction Company. |
| Decision Date | 01 March 1971 |
| Court | Supreme Court of Tennessee |
Goodpasture, Carpenter, Woods & Courtney, Nashville, for complainants-respondents.
J. Shelby Coffey, Jr., Columbia, for defendants-petitioners.
Harpeth Valley Utilities District of Davidson bill for the use of United States Fidelity bill for the use of United State Fidelity and Guaranty Company against James P. Due and James H. Campbell, partners, doing business as Campbell and Due Contractors, or Compbell and Due Construction Company. From a decree for the defendants the complainants appealed to the Court of Appeals, who, by a divided Court, reversed the Chancery Court and from their decree the defendants have filed a petition for the writ of certiorari which we have granted. For convenience and clarity we shall refer to the parties as the complainant and the defendants, respectively.
The facts which gave rise to this suit, and about which there is no serious dispute, are these:
The complainant contracted with Steel City Construction Company to install a water distribution system, Steel City Construction Company, in turn, entered into a sub-contract with the defendants. The sub-contract contained the following provision:
'Indmnity agreement: The Subcontractor covenants to indemnity and save harmless and exonerate the Contractor and the Owner of and from all liability, claims and demands for bodily injury and property damage arising out of the work undertaken by the Subcontractor, its employees, agents or its subcontractors, and arising out of any other operation no matter by whom performed for and on behalf of the Subcontractor, whether or not due in whole or in part to conditions, acts or omissions done or permitted by the Contractor or Owner.'
Persons brought suits for damages against the complainant and the defendants by which the plaintiffs therein sought recoveries for death, personal injuries and property damages which they alleged resulted from the removal by the defendants of a sign at a highway intersection. The complainants demanded of the defendants that they defend the damage suits and hold the complainants harmless from the claims therein asserted in accordance with the indemnity provision in the subcontract, above quoted. The defendants failed to defend the damage suits and upon such failure the complainant's insurer, United States Fidelity and Guaranty Company, employed attorneys to defend them and it is to recover the fees and expenses of the attorneys that the complainants brought this suit.
The defendants interposed a demurrer to the complainant's bill which the court overruled. The defendants then answered, testimony was introduced, and when the court heard the case on the merits the Chancellor dismissed the bill for want of sufficient evidence. The complainant appealed and the Court of Appeals in reversing the Chancery Court held that the decree overruling the demurrer became the law of the case and that the defenses made by their demurrer no longer were available to the defendants. The Court of Appeals found that the complainant was entitled to a recovery and awarded a decree against the defendants for the amount of the fees and expenses paid by the insurer of the complainant to the complainant's attorneys for their services.
The defendants in support of their petition for certiorari have assigned errors, as follows:
The Court of Appeals was in error in holding that it was without authority to reexamine the merits of the cause de novo but was bound by the preliminary ...
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