An employer was insured against liability for accidents to his workmen under a policy containing a condition that if proceedings were taken to enforce any claim the insurance company should, if they so desired, ‘have the absolute conduct and control of the defences, in the name and on behalf of the employer, ‘ and that they should indemnify him against the expenses of such proceedings.
A workman raised an action of damages for personal injury against the employer, and obtained decree against him for a sum of damages and for his expenses.
The defence was in fact conducted and controlled by the insurance company in name of the employer.
The employer having become insolvent the workman raised a separate action against the insurance company for the purpose of recovering his expenses in the original action.
Held (1) that the action was competent, and (2) (on a proof) that the company were the true dominus litis in the original action, and that they were accordingly liable for the pursuer’s expenses therein.
Observed that the relation between the nominal party to a suit and the dominus litis is not necessarily that of agent and principal – Fraser v. Malloch, 25 R. 619, explained.
Judges:
Lord Kyllachy
Citations:
[1899] SLR 37 – 21
Links:
Jurisdiction:
Scotland
Cited by:
Appeal from – Kerr v Employers’ Liability Assurance Co Ltd SCS 1902
An injured workman who had obtained an award of damages and expenses against his employer sought, after the employer became insolvent, to obtain an award of expenses against the insurer. It was accepted that, under the policy, the insurers had . .
Lists of cited by and citing cases may be incomplete.
Costs
Updated: 04 May 2022; Ref: scu.612071
