Travelers Ins. Co. v. Dudley

• Decision Date: 29 May 1943
• Citation: Travelers Ins. Co. v. Dudley, 173 S.W.2d 142, 180 Tenn. 191 (Tenn. 1943)
• Parties: TRAVELERS INS. CO. v. DUDLEY.
• Court: Tennessee Supreme Court

173 S.W.2d 142

180 Tenn. 191

TRAVELERS INS. CO. v. DUDLEY.

Supreme Court of Tennessee.

May 29, 1943

Appeal from Probate Court, Dyer County; Robert D. Jones, Judge.

Suit by Mrs. Wilma [Wm. L.] Dudley against the Travelers Insurance Company, workmen's compensation insurer of the City of Dyersburg, employer, to recover compensation for the death of William L. Dudley, employee. Judgment for plaintiff, and defendant appeals in error.

Modified and affirmed as modified.

Weakley & Weakley and M. Watkins Ewell, all of Dyersburg, for appellant.

Milburn N. Cooper, of Dyersburg, for appellee.

GREEN Chief Justice.

This suit was brought by the widow of an employee of Dyersburg against the city's insurer to recover compensation for her husband's death said to have been occasioned by an accident arising out of and in the course of his employment. There was an award in her favor by the trial court from which defendant insurance company has appealed in error.

The deceased Dudley was employed by the water and light department of the city of Dyersburg as a laborer. The city had not accepted the provisions of the Workmen's Compensation Act according to Code, Sec. 6856(e), and the amendment of chapter 20 of the Acts of 1941. A number of years ago, however, the city had taken out insurance providing workmen's compensation for the employees of the water and light department and a policy of this character had been carried by the city with this defendant for six or more years. Under policies issued by the defendant, it has heretofore paid small claims on account of injuries sustained by employees of the city in the water and light department and paid one claim, on an accident occurring heretofore, to the husband of the plaintiff here suing.

The principal defense of the insurance company is that by the terms of the workmen's compensation statute and by the terms of its policy issued herein its liability is identical with the liability of the city; that the city, not having elected to come under the compensation act by complying with the statutes above cited, is not liable for compensation in this case and its insurer is likewise free from liability.

There is nothing in the policy of our law against a municipal corporation operating under the workmen's compensation law. On the contrary our laws expressly sanction such course on the part of municipalities. Only a notice to the Commissioner of Labor is required. Conceding, as a general proposition, that a non-qualifying municipal corporation is not subject to the compensation act, it by no means follows that an insurer who contracts with a municipality to provide the benefits of the compensation act for the municipality's employees is likewise free from liability. Previous decisions of this court negative such an idea.

The counties of the State are not liable for the negligence of their employees. If, however, the county takes out liability policies upon its school busses, it may be held to answer for the negligence of the driver of the bus to the extent that it has provided insurance to cover such a situation. And a suit may be brought against the insurer, in the name of the county, if necessary, to enforce this liability. Rogers v. Butler, 170 Tenn. 125, 92 S.W.2d 414.

So a charitable institution may not have its property strictly devoted to the charitable use subjected to a claim in tort arising on account of the negligence of its employees. If however, the charitable institution provides liability insurance against such claim, the claim may be enforced against the institution to the extent of the insurance or against the insurer. McLeod v. St. Thomas Hospital, 170 Tenn. 423, 95 S.W.2d 917.

It appears from cases collected in a Note, 103 A.L.R. 1523, that there is a conflict of authority as to whether one taking out compensation insurance, by that act does not bring himself within the statute, although otherwise he would not be. We need not go into this question here.

We think there was a clear case of an estoppel against this defendant to deny liability to this plaintiff for the benefit of the workmen's compensation statute. The defendant had carried this policy for six or seven years and collected premiums therefor. It had paid claims to other employees and it had paid to the husband of the plaintiff one claim, thus leading him to believe that in his work for the city he was protected by compensation insurance. In this respect the case before us differs from Keeney v. Beasman, 169 Md 582, 182 A. 566, 103 A.L.R. 1515. In that case the Maryland Court refused to apply estoppel in favor of an employee against the insurer of an employer not regularly brought...