Travelers' Ins. Co. v. Inman

• Decision Date: 17 February 1930
• Docket Number: 28199
• Parties: TRAVELERS' INS. CO. v. INMAN
• Court: Mississippi Supreme Court

126 So. 399

157 Miss. 810

TRAVELERS' INS. CO. v. INMAN

No. 28199

Supreme Court of Mississippi

February 17, 1930

Division B

1 GARNISHMENT. Insurer's indebtedness, if existent when Insured's liability became legally established, was not existing debt at

time attachment suit was filed against insurer and nonresident insured.

If under insurance policy, insurer's indebtedness to insured employer became existent as soon as liability of employer for employee's injuries became legally fixed and established it was not an actually existing debt owing at time of filing of suit of attachment against insurer and nonresident employer, but filing of suit was only step in process of making it an established debt.

2 GARNISHMENT. Garnishee cannot be made party as debtor to principal defendant when garnishee's indebtedness depends on whether principal defendant is adjudged to be indebted to complainant.

Garnishee cannot be made party as debtor to principal defendant when fact vel non of garnishee's indebtedness is dependent on whether principal defendant shall be adjudged to be indebted to complainant, which adjudication necessarily must come after filing of suit.

3 GARNISHMENT. Obligation of garnishee, made jurisdictional basis of attachment in chancery against nonresident defendant must be indebtedness owing in praesenti.

Obligation of garnishee defendant to principal defendant, which is made jurisdictional basis of attachment in chancery against nonresident principal defendant, must be indebtedness owing in praesenti by garnishee defendant to non-resident principal defendant, and must be of such nature that, at time suit is filed, principal defendant could enforce debt against garnishee defendant in court of competent jurisdiction without regard to, and independently of, complainant's suit or cause of action against principal defendant.

4. GARNISHMENT, Person cannot be held as garnishee, unless, but for garnishment, defendant would have right of action against it is general requisite of right to hold person as garnishee that, but for garnishment, defendant would have right of action against him, for defendant's own use.

5. GARNISHMENT. Judgment. Where indebtedness of garnishee to defendant was not of requisite nature, court acquired no jurisdiction of nonresident debtor, and decrees were void.

Where alleged indebtedness of garnishee to principal defendant was not of requisite nature, court acquired no jurisdiction of nonresident debtor, and decrees against non-resident and against garnishee were void.

ON SUGGESTION OF ERROR. (Division B. June 9, 1930.)

1. MASTER AND SERVANT.

Insurance company insuring employers against liability to injured employees may be sued directly by employee (Louisiana Workmen's Compensation Law, section 23, as amended by Act No. 85 of 1926). Under section 23 of the Louisiana Workmen's Compensation Law (Act No. 85 of 1926), there is a direct obligation from the insurance company insuring employers against liability to injured employees under said act, and the insurance company, in such case, may be sued directly by the employee. Wyatt. v. Finley, 167 La. 161, 118 So. 674, cited.

2. JUDGMENT.

Defendant who has entered appearance in attachment suit in chancery is subject to judgment upon demand there involved (Hemingway's Code 1927, section 307). Section 307, Hemingway's Code 1927, providing that, "The court shall give a decree in personam against such nonresident, absent or absconding debtor if summons has been personally served upon him, or if he has entered an appearance," amends the former law, and a person who has appeared in a suit in attachment in chancery is subject to judgment upon the demand there involved.

HON. R. W. CUTRER, Chancellor.

APPEAL from chancery court of Wilkinson county HON. R. W. CUTRER, Chancellor.

Suit by Rennie Inman against the Travelers' Insurance Company and others. From the decree defendant named appeals.

Reversed in part, and rendered.

On suggestion of error. Suggestion of error sustained in part and overruled in part.

Suggestion of error sustained in part, overruled in part.

Brandon & Brandon, of Natchez, for appellant.

For a person to be charged as garnishee it must appear affirmatively that he was, when garnisheed, indebted to the principal defendant, and that unless that fact so appear it is insufficient and no judgment should be rendered against him.

McNeill v. Roache, 49 Miss. 436; Russell v. Clingan, 33 Miss. (IV George), 535; 28 C. J. 44, 130.

There must be present and subsisting right of action for some definite and liquidated or ascertainable amount in favor of the principal defendant against the person sought to be charged as garnishee.

The form of policy with the particular wording used therein has frequently been defined by the courts to be one of pure indemnity.

Carter v. Aetna Life Ins. Company (Kan.), 91 P. 178, 11 L.R.A. (N. S.) 1155, 1156.

The term "indemnity" has frequently been distinguished from the term "insurance."

Cummings v. Cheshire County Mutual Fire Insurance Company, 55 N.H. 457, 469.

The authorities on the term "indemnity" as distinguished from the term "insurance" or "an agreement to clearly show that there is no right of action upon an indemnity contract unless and until the obligee has actually suffered loss or damage.

Frye v. Bath Gas & Electric Company, 54 A. 393, 396, 97 Me. 241, 59 L.R.A. 444, 94 Am. St. Rep. 500; Davis v. Phoenix Insurance Co., 43 P. 1115, 1117, 111 Cal. 409; Wicker v. Hoppock, 73 U.S. (6 Wall.) 94, 99, 18 L.Ed. 752, 753; Henderson-Achert Lithographic Company v. John Shillito Co., 60 N.W. 295, 296, 64 Ohio St. 238, 83 Am. St. Rep. 745; Counsins v. Paxton & Gallagher Co., 98 N.W. 277, 278, 122 Iowa 465; Burke v. London Guarantee & Accident Co., 93 N.Y.S. 652, 653, 47 Misc. Reps. 171; Poe v. Philadelphia Casualty Co., 84 A. 476, 479, 118 Md. 347; 36 C. J. 1129, et seq.; Carters v. Aetna, Life Insurance Company (Kan.), 91 P. 178, 11 L.R.A. (N.S.) 1155, 1156.

The decisions universally hold that contracts of indemnity, including those of indemnity against loss or damage sustained by an employer by reason of liability for injuries suffered by his employees, are not properly the subject of garnishment.

Allen v. Aetna Life Insurance Co. of Hartford, Conn., 76. C. C. A. 265, 145 F. 881, 7 L.R.A. (N.S.) 963; Combs v. Hunt & Georgia, Casualty Co., 125 S.E. 661, 37 A.L.R. 633; West Florida Grocery Co. v. Teutonia Fire Insurance Co., 77 So. 209, L.R.A. 1918B, 968, et seq., p. 971; Clark v. Bonsal, 48 L.R.A. (N.S.) 191; Patterson v. Adan, 48 L.R.A. (N.S.) 184.

Jones & Stockett, of Woodville, for appellee.

No answer properly sworn to has been filed by cross-appellee denying indebtedness.

Griffith's Mississippi Chancery Practice, 371; Stewart v. Coleman & Co., 81 So. 653; Purvis v. Woodward, 78 Miss. 922, 29 So. 917; Downing v. Campbell, 95 So. 312, 131 Miss. 137.

The second answer of Travelers Insurance Company shows it is liable on its face.

Crescent Insurance Co. v. Moore, 63 Miss. 419; Southern Pacific R. R. v. Lyon, 99 Miss. 186, 54 So. 728; Red v. Powers, 69 Miss. 242; Boyett v. Boyett, 119 So. 299; Grenada Bank v. Glass et al., 116 So. 740; Mercantile Corporation v. Hedgpeth, 112 So. 874.

BRIEFS ON SUGGESTION OF ERROR.

Brandon & Brandon, of Natchez, for appellant.

Under section 23 of the Louisiana Employers' Liability Act as amended by Act 85, Laws of 1926, an employee of insured whose employment and injuries would entitle him to compensation under the Louisiana, Employers' Liability Act, would be entitled to maintain a direct action against the insurance company provided such employee should come within the classifications contemplated and covered by the schedules of the policy; for section 23 of the Act contains this further clause: "Provided further that when an employer is engaged in more than one business for the purpose of insurance against his liability under this Act each separate and distinct business may be covered by separate policies. The allegations of the bill filed in this cause show that the nature of the appellee's employment was not such as to bring him under the classification covered by the policy.

The supreme court is limited by the case as it was presented in the court below.

Illinois Central R. R. Co. v. Sumrall, 96 Miss. 860, 51 So. 545; Railroad v. Schragg, 84 Miss. 125, 36 So. 193; United States Casualty Co. v. Malone, 126 Miss. 288, 88 So. 179; 16 Enc. Pl. & Prac. 804; Shipman on Equity Pleading, p. 226; Fletcher's Equity Pl. & Pr., sec. 77, p. 109; Puterbaugh's Chancery Pl. & Pr. (3 Ed.), pp. 58 and 59; Bell v. Clark, 71 Miss. 603, 14 So. 318; Barkwell v. Swan, 69 Miss. 907, 13 So. 809; Weeks v. Thrasher, 52 Miss. 142; Hardy v. Gregg, 2 So. 359.

Jones & Stockett, of Woodville, for appellee.

Under section 23, Act of 1914 of Louisiana, an employer is not necessarily a party to an action for compensation for death of an employee, but the insurance carrier may be sued directly and individually on its primary obligation, and hence it is not necessary that such compensation shall be first awarded or agreed upon in a suit against an employer before bringing action against insurance carrier.

Wyatt v. Finley, 118 So. 874.

Under Rule 11 of the Supreme Court of Mississippi: No judgment shall be reversed on the ground of misdirection, to the jury or the improper admission or exclusion of evidence, or for error as to the matter of pleading or procedure, unless it shall affirmatively appear, from the whole record, that such judgment has resulted in a miscarriage of justice and in this case in view of the decree heretofore rendered, the pleadings, etc., justice will not be given unless this cause is at least reversed and...