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signable. Defendants, in an effort to over.hrow plaintiff's onset, allege facts which they maintain constitute (1) laches; (2) res adjudicata. A decree was entered for defendants.

[1] The legal effect of the deed and the rights acquired by the grantees thereunder were determined by this court in Bingham v. Salene, 15 Or. 208, 14 Pac. 523, 3 Am. St. Rep. 152; Salene v. Isherwood, 55 Or. 263, 106 Pac. 18; and Isherwood v. Salene, 61 Or. 573, 123 Pac. 49, 40 L. R. A. (N. S.) 299, Ann. Cas. 1914B, 542. The questions decided in the first case and laid to rest were: That the instrument conveyed to the grantees, their heirs and assigns forever, the exclusive right and privilege to shoot, kill, and take any wild fowl upon and in any of the lakes, sloughs, or waters situated upon the land defined in the deed with the right of ingress and egress for such purposes to and from the waters mentioned.

that matters once litigated and decided by a court of competent jurisdiction should not be stirred again.

[2] Well might we close this case here, but we will comment on another defense which must necessarily operate as superable barrier to further litigation and; that is, the defense of a stale equity. We acknowledge the dogma that no arbitrary rule exists for determining when a matter becomes stale, and that the question of laches is to be decided upon the particular circumstances of each case. Therefore a careful scrutiny of the record becomes obligatory and reveals that of the four parties to the deed, all, save plaintiff, have died; that the time intervening between the first case and this, the last one, has covered a period of about 28 years. These two circumstances in themselves are sufficient to inspire a court of equity to look with disfavor upon this suit and to deny the application for relief. Neppach v. Jones, 20 Or. 491, 26 Pac. 569, 849, 23 Am. St. Rep. 145; Wilson v. Wilson, 26 Or. 15257, 38 Pac. 185; Froebrich v. Lane, 45 Or. 13, 76 Pac. 351, 106 Am. St. Rep. 634; Wills V. Nehalem, 52 Or. 70, 96 Pac. 528.

For the purpose of showing the extent of the matters adjudicated, we quote from Mr. Chief Justice Lord in Bingham v. Salene, Or. 216, 14 Pac. 526, 3 Am. St. Rep. 152: "We come now to consider the defenses of the defendants. Substantially, they are divisible into two parts: and, briefly, are: (1) That the defendants, being unable to read and write, signed the deed, relying upon the representations of the plaintiffs that its provisions only created a personal license to come down to the farm of the defendants to shoot and hunt wild fowl; and (2) that at the time the deed was executed, the plaintiffs were acting as the attorneys for the defendants, and availed themselves of the confidence arising from that relation to procure their consent to grant them such privilege on the representations stated. It is sufficient to say, without going much into detail, that we do not think that either of these defenses are sustained by the evidence."

[3] We observe in this case that the abstract does not contain any assignments of error. Rule 12 of this court (56 Or. 621, 117 Pac. xi) provides:

will be examined or considered, except those go"On the hearing in this court, no questions ing to the jurisdiction of the court, or when the pleading does not state facts sufficient to constitute a cause of action or defense, or those arising upon the assignments of error, as contained in the printed abstract."

An "assignment of error" is in the nature of a pleading, and its purpose is to point out the specific errors alleged to have been com

the appellate court to see on what point a reversal of the case is asked, and it is therefore, not only of the utmost importance, but an indispensible prerequisite to the consideration of a cause, that the errors claimed be specified.

Thus do we find the very matters suggest-mitted by the trial court in order to enable ed by this litigation discussed and decided adversely to plaintiff's contention. The judgment rendered therein is a finality as to the claims in controversy, not only as to every matter which was offered to defeat the original conveyance, but as to other admissible matters which might have been offered for that purpose. The law as to the conclusiveness of a judgment is clearly stated by the Supreme Court of the United States in Cromwell v. County of Sac, 94 U. S. 351, 24 L. Ed. 195, and the distinction between the effect of such a judgment as a bar or estoppel in the same action and as an estoppel or bar to another action is most lucidly stated. This court has decided over and over again that a judgment is conclusive not only upon the questions actually contested and determined, but upon all matters which might have been litigated and decided in the proceeding, unless the failure to urge the point in question was caused by the adversary's fraud and was without negligence of the losing party. Belle v. Brown, 37 Or. 588, 61 Pac. 1024; Krebs Hop Co. v. Livesley, 55 Or. 227, 104 Pac. 3, and cases therein mentioned.

[4-6] An appellant omitting to do this, the judgment or decree of the lower court will be affirmed; though this general statement must be qualified in these particulars: Where the appeal is taken from a decree entered on the pleadings, formal assignments of error are not imperatively necessary, though it is better practice to have them (Neppach v. Jones, 28 Or. 286, 39 Pac. 999, 42 Pac. 519); nor will the appeal be dismissed for lack of assignments of error where it sufficiently appears that the error complained of is the entering of a certain order which is fully set out with sufficient of the record to make it intelligible (Medynski v. Theiss, 36 Or. 397, 59 Pac. 871); and, where the assignments were inadvertently omitted, they may be filed as a supplemental abstract, where respondent has not been affected by the omission (Fleischner v. Bank of McMinn

Pac. 345; Skinner's Will, 40 Or. 571, 575, are to be construed favorably to the insured
62 Pac. 523, 67 Pac. 951).
when ambiguous.

The decree of the lower court is, in our
opinion, free from error, and must be af-
firmed.

MCBRIDE, C. J., and EAKIN and BEAN,
JJ., concur.

(74 Or. 40)

Cent. Dig. §§ 292, 294-298; Dec. Dig. § 146.*]
[Ed. Note.-For other cases, see Insurance,

5. INSURANCE (§ 156*)-CONSTRUCTION OF POL-
ICY-ENFORCEMENT-CONTRACTS FOR BENE-
FIT OF THIRD PERSON.

An employer's liability insurance policy cre-
ates no privity between the insurer and an em-
ployé, and is not a promise for the benefit of the
employé.

[Ed. Note.-For other cases, see Insurance,

SCHEUERMAN v. MATHISON et al. (PA- Cent. Dig. §§ 316-322; Dec. Dig. § 156.*]

CIFIC COAST CASUALTY CO.,

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1. GARNISHMENT (§ 13*) - GROUNDS - AID OF
EXECUTION PROPERTY SUBJECT TO GAR-
NISHMENT.

-

To enable a creditor to maintain a garnish-
ment proceeding there must be a subsisting right
of action at law by the defendant in his own
right against the garnishee, and the garnishee
cannot be held liable unless he is indebted to
the defendant at the time of the commencement
of the garnishment proceeding.

[Ed. Note.-For other cases, see Garnishment,
Cent. Dig. §§ 21-24; Dec. Dig. § 13.*]

2. GARNISHMENT ($ 34*)-PROPERTY SUBJECT
TO-AID OF EXECUTION.

Under a policy insuring an employer against
loss and expense arising from claims for inju-
ries or death suffered by any employè, providing
that if suit was brought the assured should for-
ward to the insurer every process and paper,
that the company at its own expense would set-
tle or defend the suit, that the assured should
not assume any liability nor interfere with any
negotiation for settlement or legal proceeding
nor incur any expense or settle any claim ex-
cept at its own cost, and that no action should
lie against the insurer for loss or expense there-
under unless it should be brought for loss or ex-
pense actually sustained and paid in satisfaction
of a final judgment, construed in accordance
with L. O. L. 8 715, providing that in the con-
struction of an instrument the office of the judge
is simply to ascertain and declare what is in
terms or substance contained therein, and not
to insert what has been omitted or omit what
has been inserted, and that when there are sev-
eral provisions or particulars such construction
is to be adopted as will give effect to all, and
section 716 providing that the intention of the
parties is to be pursued if possible and that a
particular intent shall control a general one in-
consistent therewith, no action could be main-
tained until the assured had paid all or some
part of the judgment against it, and then only
for the amount actually paid, and there was noth-
ing due the assured subject to garnishment by
an employé who had recovered judgment against
the assured, except an amount equal to the
amount which the assured had paid on the judg-

ment.

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-

Bean, J., dissenting.

Department No. 1.. Appeal from Circuit
Court, Multnomah County; Henry E. Mc-
Ginn, Judge.

Action by Jacob Scheuerman against S.
Mathison and another, copartners doing busi-
ness as Mathison & Anderson, in which a gar-
nishment proceeding was instituted against
the Pacific Coast Casualty Company. From
a judgment against the garnishee, it appeals.
Modified, and remanded with instructions.
See, also, 67 Or. 419, 136 Pac. 330.

George B. Guthrie, of Portland (Wilbur &
Spencer and A. L. Clark, all of Portland, on
the brief), for appellant. R. F. Peters, of
Portland (M. H. Clark, of Portland, on the
brief), for respondents.

The

RAMSEY, J. The Pacific Coast Casualty
Company is a California corporation.
plaintiff was an employé of the firm of Ma-
thison & Anderson, defendants herein, and,
while in their employment, he received per-
sonal injuries.

On July 10, 1912, he commenced an action
against said firm in the circuit court of Mult-
nomah county to recover damages for said
injuries, and soon thereafter he recovered a
judgment against said firm for the sum of
$1,650, and the further sum of $57.25 as costs
and disbursements. On January 7, 1914, an
execution was issued out of said court to
enforce said judgment, and it was placed in
the hands of the sheriff of Multnomah coun-
ty for service, with instructions to garnish
the Pacific Coast Casualty Company by serv
ing the necessary papers therefor upon C. A.
Craft, the secretary of said company. The
sheriff made proper service of said garnish-
ment papers upon said company and its said
officer. Said garnishment papers required
said company forthwith to make a certificate
as to all property and credits in its possession
belonging to said firm of Mathison & Ander-
Son, and especially a certificate as to any
money due said defendants or either of them
from said garnishee. The said garnishee
failed to make any certificate as to the prop-
erty or moneys or credits supposed to be in
its hands belonging to the said defendants.
On January 14, 1914, said sheriff made his
return upon said writ of execution, stating
that he had served said garnishment papers

4. INSURANCE (§ 146*) CONSTRUCTION OF
CONTRACT-CONSTRUING AGAINST INSURER.
As contracts of insurance are usually pre- upon said company, and that said company
pared by the companies that issue them, they had failed to make any certificate as to wheth-
*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

er it had any property, money, or credits in
its hands belonging to the defendants, etc.
When the plaintiff was injured as above
stated, he was in the employment of the de-
fendants, and, at that time and prior and
subsequent thereto, the defendants were in-
sured with the Pacific Coast Casualty Com-
pany, the garnishee, and, by the terms of the
policy of insurance issued by said company
to the defendants, said company agreed to
idemnify the defendants for any loss they
might sustain by reason of injuries to any of
their employés. Immediately after the plain-
tiff commenced said action for damages
against said defendants, the said company,
through its attorneys, took charge of said
case for said defendants, and filed the answer
therein for the defendants, and conducted
said cause for the defendants until the final
judgment therein was obtained, as stated su-
pra. The plaintiff caused a writ of execu-
tion to be issued upon said judgment and
collected thereon only the sum of $124, and
said sum of $124 is all that the defendants
have paid on said judgment. The garnishee,
said casualty company, has not paid the de-
fendants or either of them any part of the
said judgment recovered by the plaintiff
against the defendants for said personal in-
juries suffered while in their employment, as
stated supra. After alleging inter alia sub-referred to are as follows:
stantially the facts related supra, the plain-
tiff, by his complaint, demanded judgment
against said company, as garnishee, for the
sum of $1,604.38 and interest, etc. The plain-
tiff's complaint and proper interrogatories
were served on said company, as garnishee,

court in said cause, to the Supreme Court of
the state of Oregon, and furnished bond to
cover the costs of said appeal, as required by law,
and upon said cause being affirmed by the Su-
preme Court, the said garnishee paid the costs
of said appeal; that all of said proceedings
were taken in the name of the defendants, but
that the defendants had no charge or control
over said proceedings, and all of said proceed-
ings were under the exclusive control and charge
of the said garnishee."

The sixth finding of fact that the garnishee requested and the trial court refused to find is as follows:

"That immediately upon the plaintiff being injured, the said garnishee, through its attorneys and agents, as provided in said liability policy, and not otherwise, took charge and control of the case and all negotiations and proceedings therein, and upon this action being commenced, said garnishee, through its attorneys, as provided in said liability policy, and not otherwise, and at its own expense, took charge and control of the defense of said action, and conducted the defense of the trial of said action in this bility' policy, and not otherwise, took an appeal court, and thereafter, as provided in said liafrom the judgment rendered in this court in said cause to the Supreme Court of the state of Oregon."

Said company answered said complaint and interrogatories, admitting portions, and denying other parts thereof, and setting up new matter. The reply denied parts of the new matter of the answer, and set up new matter.

The cause was tried by the court without a jury, and findings and a judgment were rendered for the plaintiff, and against the garnishee, for the amount demanded by the complaint. The garnishee appeals, and contends that the court below erred in its sixth finding of fact and in refusing to find the sixth finding of fact requested by the garnishee, and in finding, as a conclusion of law, that the plaintiff was entitled to a judgment against the garnishee for the sum named therein, and in not finding that the garnishee was entitled to judgment against the plaintiff, etc.

The garnishee in its answer set out in full the policy of insurance upon which this proceeding is based. We set out only the portions thereof bearing on the questions raised on this appeal. The portions of said policy "Pacific Coast Casualty Company of California. and of twenty-five and 00/100 dollars ($25.00) (deposit premium) estimated premium, the Pacific Coast Casualty Company, of San Francisco, California, herein called the company, hereby insures Mathison & Anderson, and/or Mount Hood Brewery Company of the county of Multnomah, state of Oregon, hereinafter called the assured, against loss and expense arising from count of bodily injuries or death accidentally claims upon the assured for damages on acsuffered or alleged to have been suffered during the period of this policy by any employé of the assured by reason of the prosecution of the work described herein.

"In consideration of the warranties herein

"If a suit is brought on account of an accident, the assured shall forward immediately to the company, or to its duly authorized agent, every process and paper served on him. The company, at its own expense, will settle or defend said suit, whether groundless or not; the moneys expended in said defense shall not be included in the limits of the liability fixed under this policy. The assured shall not assume any liability, nor interfere with any negotiation for settlement or any legal proceeding, nor incur any expense nor settle any claim except at his own cost, without the written consent of the company."

"L. No action shall lie against the company for any loss or expense under this policy unless it shall be brought for loss or expense actually sustained and paid in satisfaction of a final

The sixth finding of fact to which the gar- judgment, within ninety days from the date of nishee objects is as follows:

said judgment and after trial of the issue."

There appears to be no controversy as to the material facts, but the parties differ widely as to the effect of those facts, or as to the rights of the parties on the facts, found by the court below. The trial court found that the copy of the policy annexed to the answer is a true copy of the policy that

"That immediately upon the plaintiff being injured, the said garnishee, through its agents and attorneys, took exclusive charge and control of the case, and all negotiations and proceedings therein, and, upon this action being commenced, said garnishee, through its attorneys, and at its own expense, took exclusive charge and control of the defense of said action, and conducted the defense of the trial of said action in this court, and thereafter, upon its own initiative, took the garnishee issued to the firm defendants,

contents of that instrument. The firm de-, begun, could have maintained an action fendants held that policy at the time that against the said company on the said policy the plaintiff received the personal injuries of insurance. If the assured could not have referred to supra, and he was in the em- maintained such an action, the plaintiff, as ployment of said firm when he received those an attaching creditor, is not entitled to a injuries. He obtained the judgment against | judgment against the garnishee, the casualty said firm mentioned above on account of said company. We conclude that this is the law. injuries, and garnished the casualty com- [2-4] 2. Sections 715 and 716, L. O. L., depany for the amount supposed to be due from clare the rules by which we are to be guided that company to the defendants by reason of in construing this policy of insurance. the injuries that he had received. Said poli- former of said sections is: cy undoubtedly covered said injuries.

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The

"In the construction of a statute or instrument, the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been insert

[1] 1. In order that a creditor may maintain a garnishment proceeding there must be a subsisting right of action at law by the defendant in his own right against the gar-ed; and where there are several provisions or nishee, and a garnishee cannot be held liable particulars, such construction is, if possible, to to garnishment, unless it is shown that he is be adopted as will give effect to all." indebted to the defendant at the time of the commencement of the garnishment proceedings. 20 Cyc. pp. 983, 984; Case v. Noyes, 16 Or. 329, 19 Pac. 104; O. R. & N. Co. v. Gates, 10 Or. 514; Drake on Attachment (7th Ed.) 458; Waples on Attachment (2d Ed.) § 472. Waples on Attachment (2d Ed.) § 472, says, inter alia:

"Standing in the defendant's place, the plaintiff can have no greater rights than he, had the garnishee been sued by the defendant. On the other hand if the garnishee denies indebted ness, he has the same rights of defense, and no more nor less, than if sued by his creditor. The proceeding may therefore be called a suit." Drake on Attachment (7th Ed.) § 458, says: "A fundamental doctrine of garnishment is that the plaintiff does not acquire any greater rights against the garnishee than the defendant himself possesses. When, therefore, the attachment plaintiff seeks to avail himself of the rights of the defendant against the garnishee, his recourse against the latter is limited by the extent of the garnishee's liability to the defendant. This principle is subject, however, to an exception, where the garnishee is in possession of effects of the defendant under a fraudulent transfer from the latter. Then, though the defendant would have no claim against the garnishee, yet a creditor of the defendant can subject the effects in the garnisher's hands to his attachment."

In Case v. Noyes, supra, the court says: "The plaintiff by this proceeding against Noyes as garnishee is endeavoring to assert the rights of the Seaside Packing Company against him, and he can assert no other rights unless it appeared that the garnishee had effects of the defendant which he held fraudulently."

*

an instru

Said section 716 is as follows: "In the construction of * ment the intention of the parties, is to be pursued, if possible; and when a general and a particular provision are inconsistent, the latter is paramount to the former. So a particular intent shall control a general one that is inconsistent with it."

Neither courts of law nor of equity have the right or power to make contracts for parties, or to alter or amend those that the parties have made. It is the intention of the parties, manifested by their words, and not the whim of the court, that must be the guide in construing contracts made by the parties thereto. In some instances, parties without exercising due caution, sign contracts that are not in all respects reasonable or fair; but when they execute such contracts, they are, in the absence of fraud, bound by them. It is our office to ascertain and declare what is the meaning of this policy of insurance. As contracts of insurance are usually prepared by the companies that issue them, they are to be construed favorably to the assured when their provisions are ambiguous. But the terms of this policy are not ambiguous, and it is our office to determine what the parties thereto meant by the provisions set forth therein.

This policy took effect on April 10, 1912, and the plaintiff was injured about May 27, 1912. Mathison & Anderson, the assured, paid for the policy a premium of $25. The casualty company, in consideration of reIn Burns v. Payne, 31 Or. 100, 103, 49 Pac.ceiving from said firm said sum of money, 884, 885, the court says:

"He (the attaching creditor) takes the shoes and asserts the rights of the defendant against the garnishee. 'He sues for property or credits in his own name, but upon the cause of action acquired by such legal subrogation.'

999

It is a cardinal principle of the law relating to garnishments that the plaintiff therein cannot, as a general rule, acquire any greater rights against the garnishee than the defendant in the attachment case possesses. In this case, in order that the plaintiff may be entitled to a judgment against the garnishee, the casualty company, he must show that the assured, Mathison & Anderson, at the time that the garnishment proceeding was

insured said firm

"against loss and expense arising from claims upon the assured for damages on account of bodily injuries or death accidentally suffered or alleged to have been suffered during the period of this policy by any employé of the assured by reason of the prosecution of the work described herein."

The insurance is against claims for damages sustained or alleged to have been sustained by any employé of the assured in the prosecution of the work described in the policy. Another paragraph of the policy requires the assured, when sued by any person on account of an accident, to forward to the company immediately every process or

paper served on the assured, and the com- vious meaning of the contract. It contains pany agrees, at its own expenseno ambiguity on this point.

"to settle or defend said suit, whether groundless or not; the moneys expended in said defense shall not be included in the limits of the liability fixed under this policy. And the assured shall not assume any liability, nor interfere with any negotiation for settlement or any legal proceeding, nor incur any expense or settle any claim, except at his own cost, without the written consent of the company."

[5] In order, therefore, that the plaintiff may be entitled to a judgment against the casualty company, as garnishee, it is necessary for him to show that he obtained a final judgment against the assured, Mathison & Anderson, and that the assured actually paid It was said judgment or a part thereof. shown that he had obtained a final judgment against the assured, and that $124, had been

seventh finding of fact states that that amount had been collected by a writ of execution upon said judgment and that it was applied thereon. It is obvious that there is no privity between the plaintiff and the garnishee. The company has no contract with the plaintiff. The policy was obtained for the benefit of the assured and not their employés. The company made no promise for the benefit of the plaintiff.

This provision of the policy binds the company, at its own expense, either to settle or defend any action for damages, and it in-paid on said judgment by the assured. The hibits the assured from assuming any liability for any claim, or interfering with negotiations for the settlement of any claim, or from settling any claim, except at their own expense, without the written consent of the company. This provision gives the company full control of all legal proceeding brought against the assured for damages, and prevents the assured's settling or paying any claim prior to judgment, except at their own expense, without the written consent of the company. The company has the right to settle claims before judgment or to litigate them, but the assured cannot, except at its "A policy by which insurer agrees to indemown expense, settle or pay any claim before nify assured against loss from claims for perit is reduced to judgment, unless the com-sonal injury suffered by any one not employed pany assents thereto. This provision was in- by assured by reason of assured's business, and serted in the contract to give the company which provides that if action is brought against full control of all settlements prior to judg. assured on a claim covered by the policy he shall notify insurer, and it will defend in the name ment and to enable the company to contest and on behalf of assured, and that no action the claims in the courts as far as it should shall lie against insurer to recover for any loss desire to do so. The said provision of the under the policy, unless brought by assured for contract is to be construed in connection with loss actually sustained and paid in money by him after trial, indemnifies only against loss acparagraph L thereof, which is as follows: tually sustained and paid by assured in money, and not against liability. Plaintiff by garnishment gets no better right than his debtor has to the debt garnished."

"No action shall lie against the company for any loss or expense under this policy unless it shall be brought for loss or expense actually sustained and paid in satisfaction of a final judgment, within ninety days from date of said judgment, and after trial of the issue."

In Ford v. Ætna Life Ins. Co. of Hartford, 70 Wash. 29, 126 Pac. 69, decided by the Supreme Court of Washington, a part of the syllabus is:

In Fenton v. Fidelity & Casualty Co., 36 Or. 283, 288, 56 Pac. 1096, 1097 (48 L. R. A. 770), the court says:

ties between a contract of indemnity against liability for damages, and a simple contract of indemnity against damages. In the former case, it has very generally been held that an action may be brought and a recovery had, as soon as the liability is legally imposed, while in the latter there is no cause of action until there is actual damage. *** If, therefore, the policy upon which this action is based is a mere contract of indemnity, the payment by this mill company (the assignor of the plaintiff) of the liability incurred by it for the services of the plaintiff is a condition precedent to the right of recovery.”

"There is a distinction made by the authori

This paragraph of the contract expressly provides that no action shall lie against the company for any loss or expense under the policy, except for loss or expense actually sustained and paid in satisfaction of a final judgment, and after trial of the issue. The only insurance created by the policy is against "loss and expense"; and paragraph "L" provides that no action shall lie against the company for "loss or expense" unless it shall be brought for "loss or expense actually sustained and paid in satisfaction of a final judgment," after trial of the issue, within 90 days from the date of the judgment. By this clause it is provided, that an action against the company will lie only for loss and expenses that have been paid in satisfac- that, if suit is brought against the assured, he "Agreements in an employer's liability policy tion of a final judgment obtained after a shall immediately forward the process to the trial of the issue of damages. If said pro- insurer, which will defend against or settle the vision is valid, it necessarily follows, that claim, do not, when considered with a provision the company is not liable to an action on the of the policy declaring its purpose to be indemnity to the assured against loss from liapolicy until a final judgment has been ob- bility for damages,' and another agreement that tained against the assured by a person in- no action shall lie against the insurer in referjured, and the assured has paid all or some ence to any loss under the policy unless brought portion of said judgment, and such action by the assured himself to reimburse him for payment by him in satisfaction of a judgment, rencan be maintained for only the amount ac-der the policy one of indemnity against liabili

In Finley v. United States Casualty Company, 113 Tenn. 592, 83 S. W. 2, 3 Ann. Cas. 962, a part of the syllabus is:

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