U.S. Fidelity & Guaranty Co. v. Allen
Decision Date | 16 March 1929 |
Citation | 14 S.W.2d 724,158 Tenn. 504 |
Parties | UNITED STATES FIDELITY & GUARANTY CO. et al. v. ALLEN. |
Court | Tennessee Supreme Court |
Certiorari to Court of Appeals, on Appeal from Circuit Court, Davidson County; E. F. Langford, Judge.
Suit by W. H. Allen, as administrator, against the United States Fidelity & Guaranty Company, C. O. Jones and Clay Dillon doing business as Jones & Dillon, and another. Judgment in plaintiff's favor against all the defendants was affirmed by the Court of Appeals, and defendants named apply for certiorari. Petition for certiorari denied.
L. M Davis, George J. Gale, and Wm. Hume, all of Nashville, for plaintiffs in error.
W. A Guild, of Nashville, for defendant in error.
This suit was brought by W. H. Allen as administrator of his 11 year old child, to recover damages for the death of the latter, who was struck and killed by an automobile. Cloyd Neel seems to have owned the car at the time of the accident, and it was operated by an agent of Neel in the business of carrying passengers for hire between Gallatin and Nashville. C. O. Jones and Clay Dillon, doing business as Jones & Dillon, and the United States Fidelity & Guaranty Company, along with Neel, were made defendants to the suit, and there was a judgment against all said defendants in the trial court, which was affirmed by the Court of Appeals.
A petition for certiorari has been filed by Jones & Dillon and the United States Fidelity & Guaranty Company. The liability of Neel is not contested by this petition, but it is insisted that Neel alone is liable.
It appears from the proof that prior to April 26, 1927, the car which killed the little boy was owned and operated as a public conveyance between Gallatin and Nashville by the firm of Jones & Dillon. Pursuant to chapter 729 of the Private Acts of 1925, Jones & Dillon procured from defendant Guaranty Company a bond or insurance policy payable to the state of Tennessee, binding the principals and the insurer to make compensation to those injured in person or property by the negligent operation of such vehicle. The said policy was issued by defendant Guaranty Company December 3, 1926, and ran for one year.
Under the provisions of chapter 729 of the Acts of 1925, any person injured in person or property by the negligent operation of such a motor vehicle is entitled to institute suit jointly against the owner or operator of said machine and the obligor or insurer on said bond or policy.
A rider attached to the policy issued by defendant Guaranty Company contains this language:
"It is further understood and agreed, and a part of the consideration of the issuance of this policy, that, regardless of the name of the party designated as beneficiary, the real beneficiary is the state of Tennessee for the use and benefit of the public as set out in said act."
On April 26, 1927, about three weeks before the Allen boy was killed, Jones & Dillon sold this particular automobile to defendant Neel, and, as stated above, Neel seems to have been operating the car as a public conveyance through his agent at the time of the accident. Although he had been so operating said machine for this length of time, Neel himself had made no attempt to comply with the provisions of chapter 729 of the Private Acts of 1925, had filed no bond for the protection of the public as required by that statute, and the machine still bore the license plates issued to Jones & Dillon by the county court clerk of Davidson county. None of the parties had given notice to the county court...
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