Horton v. Employers' Liability Assur. Corp.

• Decision Date: 10 October 1942
• Citation: 164 S.W.2d 1016,179 Tenn. 220
• Parties: HORTON et al. v. EMPLOYERS' LIABILITY ASSUR. CORPORATION, Limited.
• Court: Tennessee Supreme Court

164 S.W.2d 1016

179 Tenn. 220

HORTON et al. v. EMPLOYERS' LIABILITY ASSUR. CORPORATION, Limited.

Supreme Court of Tennessee.

October 10, 1942

Appeal from Chancery Court, Knox County; A. E. Mitchell, Chancellor.

Action by Margaret Long Horton against the Employers' Liability Assurance Corporation, Limited, to recover the amount of a judgment which the plaintiff had obtained against one to whom defendant had issued an automobile liability policy. To review an adverse judgment of the Court of Appeals, 164 S.W.2d 1011, the complainant brings certiorari.

Certiorari denied.

Nathan Orris Hale, of Knoxville, for appellant.

Jennings & O'Neil, of Knoxville, for appellee.

DeHAVEN Justice.

Complainant Margaret Long Horton, while riding as a passenger in the automobile of Edward Matthews, sustained personal injuries as the result of the collision of the Matthews automobile with that of another person. She sued Matthews in the Circuit Court of Knox County, Tennessee, and recovered a judgment, by default, in the sum of $5,000. This judgment not having been paid by Matthews, she filed her bill herein to collect the same from defendant herein, predicating her right of action on the following provision contained in an automobile liability insurance policy issued by defendant to Matthews:

"1. Coverage A--Bodily Injury Liability. 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, including damages for care and loss of services, because of bodily injury, including death at any time resulting therefrom, sustained by any person or persons, caused by accident and arising out of the ownership, maintenance or use of the automobile."

Defendant answered and denied liability to complainant, or Matthews and relied on paragraphs 4 and 14 of the policy of insurance. These paragraphs are as follows:

"4. Assistance and Cooperation of the Assured. The Assured shall cooperate with the Corporation and, upon the Corporation's request, shall attend hearings and trials and shall assist in effecting settlements, securing and giving evidence, obtaining the attendance of witnesses and in the conduct of suits and the Corporation shall reimburse the Assured for any expense, other than loss of earnings, incurred at the Corporation's request. The Assured shall not, except at his own cost, voluntarily make any payment, assume any obligation or incur any expense other than for such immediate medical and surgical relief to others as shall be imperative at the time of the accident."

"14. No action shall lie against the Corporation unless, as a condition precedent thereto, the Assured shall have fully complied with all the conditions hereof, nor 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 Corporation, nor in either event unless suit is instituted within two years and one day after the date of such judgment or written agreement.

"Any person or his legal representative who has secured such judgment or written agreement shall thereafter be entitled to recover under the terms of this policy in the same manner and to the same extent as the Assured. Nothing contained in this policy shall give any person or organization any right to join the Corporation as a codefendant in any action against the Assured to determine the Assured's liability.

"Bankruptcy or

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