Lumbermen's Mutual Casualty Co. v. DeLozier

Barnhill, J.

Was there error in the judgment of the court below vacating the order entered by the judge of the general county court ordering the defendants, their attorneys and agents to refrain from prosecuting the action for damages instituted by the defendant Tweed against tbe defendant DeLozier? This is the only question presented and it must be answered in the negative. Whether this proceeding is maintainable as between the plaintiff and the defendant DeLozier is not presented.

The plaintiff sets out fully the terms of its policy, the conditions under which liability attaches, the circumstances under which the plaintiff is required to defend in the name and behalf of the defendant DeLozier, and the noncoverage provisions of the policy. The defendant DeLozier files no answer. He thereby admits the allegations in the complaint or petition.

The defendant Tweed is not interested in the alleged controversy between the plaintiff and the defendant DeLozier as to whether the plaintiff is required to defend an action instituted against DeLozier for damages growing out of an accident while said defendant’s child under sixteen years of age was operating the automobile. ■ The defendant Tweed in her action specifically alleges that the defendant DeLozier was operating the automobile at the time she sustained her injuries. If she recovers it must be on evidence sustaining her allegations. In her present action she cannot recover on proof that the boy was driving.

The plaintiff concedes in its petition that it is its duty to defend an action instituted against DeLozier for damages growing out of his alleged negligence in the operation of said automobile, even if such suit is groundless, false or fraudulent. It is now called upon to defend an action in which it is alleged that the defendant DeLozier was so negligent. There can be no controversy as to its duty under the terms of its policy to respond to this call.

Litigants have the right to an expeditious trial of their causes, in so far as the condition of the docket will permit. No cause appears upon the record why this right should be denied to the defendant Tweed. If the plaintiff desires to have adjudicated the alleged controversy between it and the defendant as to the duty of the plaintiff to defend an action instituted against DeLozier, in which it is alleged that his infant son was operating the automobile in violation of law, it may do so. But it has no right to delay the defendant Tweed in the prosecution of her action pending the determination of that controversy.

This action presents a novel situation which is unique in the annals of legal procedure, at least in this State. The judge of the county court orders and directs a litigant and her attorneys to refrain and desist from proceeding in an action in his own court. In effect he restrains the trial of a cause pending before him.

Exception No. 8, entered by the defendant Tweed to the judgment signed by the judge of the county court, was well taken and the judge below properly sustained the same.

Affirmed.