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226 F2d 579 Todd v. National Surety Corporation

226 F.2d 579

Vester TODD, Appellant,

v.

NATIONAL SURETY CORPORATION, Appellee.

No. 12413.

United States Court of Appeals Sixth Circuit.

October 12, 1955.

Murray & Murray, Maddox, Maddox & Lassiter, Huntingdon, Tenn., for appellant.

James W. Watson, Memphis, Tenn., for appellee.

Before SIMONS, Chief Judge, and MARTIN and STEWART, Circuit Judges.

PER CURIAM.

1

This cause came on to be heard on the briefs and appendices thereto, filed both by appellant and appellee, and upon the oral arguments of attorneys for the contending parties;

2

And it appearing that the findings of fact of the district court (particularly that the first notice of the accident was received by the appellee insurer nearly eight months after the accident) are supported by substantial evidence and certainly are not clearly erroneous, and that its conclusions of law are soundly based upon Tennessee authority, the controlling law of the case, more especially upon the opinions of the state Supreme Court in Phoenix Cotton Oil Company v. Royal Indemnity Company, 140 Tenn. 438, 205 S.W. 128; Blackman v. U. S. Casualty Company, 117 Tenn. 578, 103 S.W. 784; Horton v. Employers Liability Assurance Corporation, Ltd., 179 Tenn. 220, 164 S. W.2d 1016;

3

And it appearing further that the opinion of the Court of Appeals of Tennessee in Butler v. Eureka Security Fire & Marine Insurance Co., 21 Tenn.App. 97, 105 S.W.2d 523, relied upon by appellant, is plainly distinguishable upon its facts, in that there the identity of the insurer was deliberately withheld from the third party beneficiary and his attorney who attempted to give notice as soon as possible;

4

And it appearing also that the appellee insurer here was prejudiced by the long delay in the report of the accident to it and that its investigation of the accident under the non-waiver agreement made did not constitute a waiver of its defenses, Hardware Mutual Casualty Co. v. Higgason, 175 Tenn. 357, 134 S.W.2d 169;

5

The judgment of the district court dismissing appellant's complaint is ordered affirmed.