Dissenting Opinion
White, J.Appellee, Shirley Jordan Noble (hereinafter the “insured”), brought suit in the court below against her own automobile insurance company, Appellant Indiana Insurance Company (hereinafter the “insurer” or the “company”) to recover under the “uninsured motorist coverage”1 of her policy. *326Her motion for summary judgment was granted. Judgment in the sum of $9,552.172 was entered against the insurer and in favor of the uninsured on account of personal injuries allegedly sustained by her in a collision of her insured automobile and an uninsured automobile. In granting the insured’s motion for summary judgment, the trial court treated a $20,000.00 judgment, entered in the insured’s previous suit against the uninsured motorist, as having conclusively established for the present suit, that the insured was “legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury . . . sustained by the insured, caused by accident and arising out of the . . . use of such uninsured automobile . . .” in the sum of $20,000.00. However phrased, the controlling question in this appeal is whether the trial court erred in so treating that prior judgment. One is tempted to state the question abstractly, but to do so is to court error. Any abstract question, short enough to be useful, would ignore the state-to-state and time-to-time difference in statutes and policy provisions which are so important. Failure to recognize such distinctions has already produced (or contributed to) much error in this rapidly developing field. This opinion, therefore, will attempt to answer only the questions presented by this case on the basis of this cause’s policy and the statute of this state in force at the time this policy was written and this controversy was litigated.
The parties have argued the question on the basis of an implied assumption that the answer depends on whether the following policy provision is valid:
*327“No judgment against any person or organization alleged to be legally responsible for the bodily injury shall be conclusive, as between the insured and the company, of the issues of liability of such person or organization or of the amount of damages to which the insured is legally entitled unless such judgment is entered pursuant to an action prosecuted by the insured with the written consent of the company.”
I find, however, that application of a fundemental principal of due process provides a less involved solution. That principle is expressed in the various sayings to the effect every man is entitled to his day in court before he can be bound by the court’s judgment.3
While this fundemental right has been made a part of our state and federal constitutions, it is much older than either.4
A correlative rule could be popularly stated to the effect that one is entitled to but one day in court. In legal language this is known as the doctrine of res judicata. It “. . . precludes parties or their privies from relitigating a cause of action that has been finally determined by a court of competent jurisdiction.”5 Our problem is to determine whether the court below, in extending the doctrine of res judicata so as to conclude the insurer from litigating (or relitigating) the issues of liability and damage adjudicated in the prior action (in which the insurer was not a party and did not participate), denied the insurer its day in court.
*328As we said in Bastin v. Myers (1924), 82 Ind. App. 325, 343, 144 N. E. 425, 431:
“It is elementary that a judgment is conclusive and binding only against the parties thereto and their privies. As to strangers, it is evidence only of its entry, and not of any fact on which it was based.”
We there cited as authority Grigsby v. Akin (1891), 128 Ind. 591, 594, 28 N. E. 180, 181, in which the Supreme Court had said: “It is a fundamental principle that a party can not be affected by a proceeding in court to which he was not a party, and in which he had no opportunity of being heard.”
In Maple v. Beach (1873), 43 Ind. 51, 58, the Supreme Court said:
“A judgment is always evidence of the fact that such a judgment has been given, and of the legal consequences which result from that fact. 1 Starkie Ev. 317; 1 Greenl. Ev., sec. 538. This is true whether the person against whom it is offered as evidence was a party to the action in which it was rendered or not. But when the judgment is offered not merely as evidence of its own existence, but as proof of some fact or facts upon the supposed existence of which the judgment was founded, the rule is very different. When the judgment is offered for this last named purpose, the general rule is, that it is not binding upon any one except the parties thereto, those who might legally have become parties, and those in privity with them. 1 Stark Ev. 323; and 1 Greenl. Ev., sec. 252.”
In Mayhew v. Deister (1969), 144 Ind. App. 111, 244 N. E. 2d 448, 453, 16 Ind. Dec. 516, 524 (also a summary judgment case) Judge Sharp succinctly, but more comprehensively, stated the applicable rules:
“The classical doctrine of res judicata precludes parties of their privies from relitigating a cause of action that has been finally determined by a court of competent jurisdiction. Any issue necessarily decided in such litigation is conclusively determined as to the parties or their privies if it is involved in a later lawsuit on a different cause of action. Obviously this is not such a case since the defendants-appellants here were not parties to the Federal Court quiet title *329suit. Further, our Supreme Court has stated the general requirement that the plea of res judicata is available only when there is privity and mutuality of estoppel. Under this requirement only parties or their privies to the former judgment could take advantage of or be bound by the former judgment. In this sense a party is one who is directly interested in the subject matter and had a right to make defense or to control the proceedings and to appeal from the judgment. Tobin v. McClellan (1947), 225 Ind. 335, 73 N. E. 2d 679. By this definition the def endants-appellees here were not parties to the Federal Court quiet title suit.” (My emphasis.)
The Supreme Court of Illinois has stated it thus:
“The doctrine of res judicata is that a point once adjudicated by a court of competent jurisdiction may be relied upon as conclusive upon the same matter, as between the parties or their privies, in any subsequent suit, in the same or any other court at law or in chancery. But the doctrine has no application against or in favor of anyone not a party or privy. The doctrine is bottomed on the ground that the party to be affected, or someone with whom he is in privity, has litigated or has had an opportunity to litigate the same matter in a former action in a court of competent jurisdiction. Newberry Library v. Board of Education, 387 Ill. 85, 55 N. E. 2d 147; Postal Telegraph Cable Co. v. City of Newport, 247 U. S. 464, 38 S. Ct. 566, 62 L. Ed. 1215. The opportunity to be heard is an essential requisite of due process of law in judicial proceedings, and courts cannot without disregarding the requirement of due process, give a conclusive effect to a prior judgment against one who is neither a party nor in privity with a party to such prior judgment. Newberry Library v. Board of Education, 387 Ill. 85, 55 N. E. 2d 147; Postal Telegraph Cable Co. v. City of Newport, 247 U. S. 464, 38 S. Ct. 566, 62 L. Ed. 1215. It is a fundamental principle of law that controls the application of res judicata that one is not bound by a prior judgment if he was not a party to such action or does not stand in the relation of privy to one who was a party. Ohio National Life Ins. Co. v. Board of Education, 387 Ill. 159, 55 N. E. 2d 163.” Hedlund v. Miner (1946), 395 Ill. 217, 69 N. E. 2d 862, 868.
The company can not be bound as a “privy” by the judgment against the uninsured motorist because, “[a] privy is one who after rendition of the judgment has acquired an in*330terest in the subject matter affected by the judgment”.6 That definition readily eliminates the company from the category of “privy” for the simple reason that if it ever had any interest in any subject matter affected by the judgment, such interest was acquired prior to the rendition of the judgment. Tobin v. McClellan, supra (225 Ind. at 346).
But the company cannot escape classification as a “party” merely because it was not formally named as either plaintiff or defendant. As stated in Mayhew, supra: “In this sense a party is one who is directly interested in the subject matter and had a right to make defense or to control the proceedings, and to appeal from the judgment.” (244 N. E. 2d at 453.) That definition comes from Tobin v. McClellan (1947), 255 Ind. 335, 344, 73 N. E. 2d 679, 683, which quotes a part of a sentence from 1 Greenleaf, EVIDENCE (15th ed.) 661, § 523. A more extended quotation from the section of Green-leaf states:
“§ 523. Parties. Under the term parties, in the connection, the law includes all who are directly interested in the subject-matter, and had a right to make defence, or to control the proceedings, and to appeal from the judgment. This right involves also the right to adduce testimony, and to cross-examine the witnesses adduced on the other side. Persons not having these rights are regarded as strangers to the cause.”
The Supreme Court of Indiana said this:
“The general rule is undoubtedly that the prior judgment of a court of concurrent jurisdiction is conclusive only between those who were parties, or their privies. It is equally true, however, that courts look beyond the nominal parties, and treat all those whose interests are involved in the litigation, and who conduct and control the action or defence, as real parties, and hold them concluded by any judgment which may have been rendered. Palmer v. Hayes, 112 Ind. 289, and cases cited; Burns v. Gavin, 118 Ind. 320; Peterson v. Lathrop, 34 Pa. St. 223.
*331“Another exception to the general rule occurs, when it is shown that a third person has such a relation to a title, or subject-matter previously adjudicated, that it was his duty, although not a party on the record, to have defended the action, upon the requisite notice thereof being given, and that he had due notice and proper opportunity to make defence. Robbins v. Chicago City, 4 Wall. 657; Calderwood v. Brooks, 28 Cal. 151; Drennan v. Bunn, 124 Ill. 175.
“Where one is bound to protect another from a liability, he is bound by the result of a litigation to which such other is a party, provided he had notice of the litigation, and opportunity to control and manage it. This is the doctrine deduced from the whole current of authorities on this subject. . . .” Strong v. Phoenix Ins. Co., 62 Mo. 289 (21 Am. Rep. 417).
“Before a third person not a party, or privy to an action, can be concluded by the judgment, it must appear that his title or interest was involved in the issue tried, and he must have actually conducted or controlled the action or defence, or he must have occupied such a relation to the controversy that it became his duty and that he had the right, upon receiving notice, to assume control of the litigation. One must either control the proceedings, or he must have had the right to do so, before he can be held concluded by the judgment. A third person who neither appears, nor has the right to appear and produce evidence or cross-examine witnesses, or take an appeal, in case an appeal lies, regardless of the wishes of the party on the record, can not be regarded as a party and bound by the judgment.” (Italics added) Wilson v. Brookshire (1890), 126 Ind. 497, 503, 25 N. E. 131,
This principle has been applied to an automobile liability insurer which has notice of a tort action against its insured by a third party allegedly injured by the insured’s operation of the insured vehicle. Hoosier Casualty Company v. Miers (1940), 217 Ind. 400, 403, 404, 27 N. E. 2d 342, 344; Motorists Mutual Ins. Co. v. Johnson (1966), 139 Ind. App. 622, 630, 218 N. E. 2d 712, 716, 8 Ind. Dec. 687, 696.
The Motorists Mutual opinion quotes from the Hoosier Casualty opinion as follows:
“ ‘Ordinarily a liability insurer is bound by the result of the litigation against the insured, provided it had notice of *332such litigation and an opportunity to control its proceedings. . . .’ 8 Applemen Ins. L. & P., § 4860, p. 289 (1962).”
The liability insurer’s right to control the defense of such proceedings arises out of the fact they are against the liability company’s insured who can, therefore, turn the defense over to his company. The policy contract between the company and the insured requires the company to defend and the insured to permit and assist it in so doing. For instance, the policy which is in the record in the case at bar, provides a liability coverage which reads in basic and pertinent part as follows:
“Indiana Insurance Company (A stock insurance company, herein called the company) Agrees with the insured . . . Part I — Liability ... To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages of: A. ... ‘bodily injury’ ... B. ... ‘property damage’; arising out of the ownership, maintenance or use of the owned automobile or any non-owned automobile, and the company shall defend any suit alleging such bodily injury or property damage and seeking damages . .; but the company may make such investigation and settlement of any claim or suit as it deems expedient. [Emphasis added.]
CONDITIONS
“5. Assistance and Cooperation of the Insured — Parts I and III. The insured shall cooperate with the company and, upon the company’s request, assist in making settlements, in the conduct of suits and in enforcing any right of contribution or indemnity against any person or organization who may be liable to the insured because of bodily injury, property damage or loss with respect to which insurance is afforded under this policy; and the insured shall attend hearings and trials and assist in securing and giving evidence and obtaining the attendance of witnesses. The insured shall not except as his own cost, voluntarily make any payment, assume any obligation or incur any expense other than for such immediate medical and surgical relief to others as shall be imperative at the time of the accident.”
*333But the case at bar does not concern or involve the liability-coverage of the policy. So far as the coverage in this case is concerned, the company is not a liability carrier. Uninsured motorist coverage is not liability coverage.7 And the prior judgment here involved was not rendered in an action against the insured.
One who is insured under the liability coverage can, and does, contract to turn over to his or her liability insurer the “control” (i.e., the “defense”) of any action against him or her for damages by a plaintiff who claims to have been injured by the insured’s ownership, maintenance or use of the insured automobile and the company agrees that it “shall defend any [such] suit.” If the insured follows through by timely tender*334ing to the company the defense8 of any such suit which may thereafter be filed against the insured, the insured can and does put the liability company into the position of a party (the defendant) to that lawsuit. The liability company is thus enabled to have its day in court. If the judgment then goes against the defendant, such judgment can thereafter be used against the liability company because it had (or could have had) its day in court and lost. Every requirement of the Tobin v. McClellan, supra, definition of parties quoted from Green-leaf, supra, is fulfilled. But such is patently not so of the uninsured motorist coverage.
An insured who has a claim against the company carrying his uninsured motorist coverage is in no position to tender to his carrier the defense of his adversary, the uninsured motorist. Consequently a judgment against his adversary, the uninsured motorist, can not be used against his insurance company because his insurance company has not had its day in court (or the right to have it) to defend against the rendition of that judgment.
Whatever it was that the insured, in the case at bar, offered to her company when the company “was requested to join in said suit”, it was not a tender of the defense of the uninsured motorist. It could not have been. It was not hers to tender.
In the case at bar the company did not have, and could not have had, its day in court to defend against the judgment which was used as conclusive evidence against it, but it is said that the company could have intervened and could thus have had its day in court. State ex rel. State Farm Mutual Automobile Ins. Co. v. Craig (Mo. App. 1963), 364 S. W. 2d 343, 95 A. L. R. 2d 1321, is the widely cited authority for the right to intervene. Strangely enough the insurance company in that case was already a party to Count II and sought to intervene in Count I (to which the uninsured motorist was the only defendant) after its motion to be dismissed from Count II had *335been overruled. Permission to intervene was mandated under a Missouri Supreme Court Rule 52.11 patterned after the former federal rule 24(a) (2) which permitted intervention by one who “might be” bound by the judgment. This rule is so much more liberal than our Burns’ Ind. Stat. Ann. (1967 Repl.) § 2-222 (in effect when this case was litigated) and the posture of that case is so much different9 from the case at bar that it would have been of doubtful authority had the insurer herein petitioned to intervene when it was notified of its insured’s suit against the uninsured motorist.
The following excerpts from Allstate Insurance Company v. Hunt (Tex. Civ. App. 1970), 450 S. W. 2d 668, 671, 672, decided seven years after the Missouri case, seems to me to express a much better informed, more mature, better reasoned, and more generally applicable view of the insurance company’s intervention in its insured’s suit against the uninsured motorist:
“. . . [A] number of cases have denied the insurance company the right to participate in the defense of an uninsured motorist in a suit brought by its insured. In Holt v. Bell, 392 P. 2d 361 (1964), the Oklahoma Supreme Court held that the auto liability insurer could not be joined as a defendant in an insured’s suit against an uninsured motor*336ist. The court stated that it could not countenance a situation where the parties are placed in a position where the interest of the insurer is to defeat the claim of its own insured. In MFA Mut. Ins. Co. v. Bradshaw, 431 S. W. 2d 252 (1968), the Supreme Court of Arkansas stated that it was doubtful that the insurer has the right to defend the uninsured motorist. In Kirouac v. Healey, 104 N. E. 157, 181 A. 2d 634 (1964), the Supreme Court of New Hampshire held that the insurance company had no standing in its insured’s action against an uninsured motorist. In Hernandez v. State Farm Mut. Auto Ins. Co., 192 So. 2d 679 (La. App. 1967), the Court held that the insurer had no right to provide a defense for the uninsured motorist in the insured’s action against such uninsured motorist.
“Serious ethical problems arise when an insurance company seeks to participate in the defense of an uninsured motorist. There may be (1) a potential or actual conflict of interest between the insurance company and its own insured and (2) there may be a potential or actual conflict of interest between the insurance company and the uninsured motorist. As the representative of the uninsured motorist the company stands in a fiduciary relationship to him. As the insurer of one suing the uninsured motorist it has, contractually, not only the right but also the duty to represent its insured in defense of. any claim that may be asserted against him as a result of the collision in question, and thus stands in a fiduciary relationship to him. Thus to permit the insurance company to defend the uninsured motorist is to permit it to assume a fiduciary relationship to two parties having conflicting interests in the subject matter of the trust.
“Interestingly, in any situation where the insurance company is permitted to undertake a dual representation the most favorable result for the company is for both its insured and the uninsured motorist to be found contributorily negligent. Such a determination would preclude the insurance company’s liability. To contend for this most favorable result, however, makes for a conflict of interest between the insurance company and both the insured and the uninsured motorist.
“We are of the opinion, however, that the conflict of interest that is in every case potentially present compels a determination that the insurance company must refrain from rep*337resenting the uninsured motorist or from intervening in an uninsured motorist case such as the one here presented. Only-such determination will eliminate the possibility of the conflict of interest arising.”
Among the confusions which may have led many courts to hold that the “right” to intervene was sufficient to make the insurer a party to the insured’s judgment against the uninsured motorist for purpose of res judicata may have been their apparent failure to realize that in some states the uninsured motorist coverage statutes give the insurer virtually the same right to defend the uninsured motorist that the liability policy gives in defense of suits against the insured.10
Another reason given for holding the insurer bound by the judgment against the uninsured motorist is the declared in*338validity of the arbitration clause. (While I have not been thoroughly convinced of this invalidity I accept it.) If there is a causal relationship between those two holdings it completely escapes me. It would seem to me that if parties have agreed to arbitrate a dispute and the agreement is void, the parties would then have a right to litigate that dispute in the courts. Why the invalidity of their agreement to arbitrate should deny one of the parties her day in court seems to defy all reason. Particularly so since the very reason for declaring the arbitration agreement void is that it prevents the other party from asserting her rights in court.
A partial explanation for this curious non sequitur is that the “consent to be bound” clause of the policy at bar has been confused with the older “permission to sue” clause.11
It is also suggested that because an automobile insurance policy is a complex contract, unilaterally prepared and seldom understood by the insured, whose bargaining position is inferior (both before and after an accident), the insurer cannot rest on a denial of liability but must take affirmative action to adjudicate every claim made against it under the uninsured *339motorist clause, even if that means intervening in somebody else's lawsuit to do so. The language of one court, that “the insurance company may not ignore its insured and then seek refuge in fine print of its policy”12 has in it the sound of demagoguery. Especially is that so when the “fine print” is the consent-to-be-bound clause which is merely a statement of the ancient right of every person to his day in court. Furthermore, insurance contracts are not the only complex, unilaterally prepared contracts of modern society. Nearly all consumer contracts fall into that category and the idea that they can be disregarded and disputes under them decided on what the judges think the contract should have been is quite inviting to one who likes to see the little man’s usual disadvantage counterbalanced. But since basic constitutional rights when not accorded to all persons, big or little, rich or poor, corporate or human, good or bad, are possessed by no one, we cannot deny insurance companies their right to their day in court without imperiling our own.
Until the General Assembly, by statute, or the Indiana Supreme Court by rule, specifies (if that be possible) the procedure by which an intervening insurer can thus have his day in court without violating its contractual duties to its own insured and, at the same time, infringing on the constitutional rights of the uninsured motorist to also have his day in court, it is illusory to hold that the insurer is bound by the judgment against the uninsured because the insurer could have intervened.
The judgment should be reversed and the cause remanded for further proceedings in which no conclusive effect is given to the judgment against the uninsured motorist.
Note. — Reported in 265 N. E. 2d 419.
. The terms, uninsured motorist coverage and family protection insurance have been used interchangeably by the industry to identify this coverage, and have been accorded general acceptance as the appropriate nomenclature. However, individual insurance companies are free to choose that terminology which they deem desirable. Thus, the endorsement has received numerous other designations, such as ‘innocent victim coverage’ and ‘family protection against uninsured motorists.’ Note 35, p. 15, Widiss, A Guide to Uninsured Motorist Coverage (The W. H. Anderson Co., Cinn., 1969).
The policy at bar is as labeled “Family Automobile Policy”, Part IV of which is captioned “Family Protection Coverage”, the basic portions of which read as follows:
“Coverage U- — Family Protection Damages for (Bodily Injury). To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called ‘bodily injury,’ sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile; provided, for the purposes of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, *326and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration.
“No judgment against any person or organization alleged to be legally responsible for the bodily injury shall be conclusive, as between the insured and the company, of the issues of liability of such person or organization or of the amount of damages to which the insured is legally entitled unless such judgment is entered pursuant to an action prosecuted by the insured with the written consent of the company.”
. The policy’s limit of liability is $10,000.00, and from that amount $447.58 was deducted for payment previously made by the insurer under the medical expense coverage.
. “The fundamental requirement of due process is an opportunity to be heard upon such notice and proceedings as are adequate to safeguard the right for which the constitutional protection is invoked.” Anderson Nat. Bank v. Luckett (1944), 321 U. S. 233, 246, 88 L. Ed. 692, 705, 64 S. Ct. 599, 606, 151 A. L. R. 824, 832.
“The guaranty of due process of law requires that every man shall have the protection of his day in court . . . .” City of Chicago v. Cohn (1927), 326 Ill. 372, 158 N. E. 118, 120.
. “The idea of procedural due process is reflected in the statement that it is a rule as old as the law that no one shall be personally bound until he has had his day in court . . . .” 16 Am. Jur. 2d 942, Constitutional Law § 548.
. Mayhew v. Deister (Ind. App. 1969), 244 N. E. 2d 448, 453, 16 Ind. Dec. 516, 524.
. Mayhew v. Deister, supra, 244 N. E. 2d at 454, emphasis added.
. “The undertaking of the insurer more closely resembles the undertaking contained in other provisions of the standard policy to pay to the insured medical expenses suffered by him as a result of injury by automobile, although the undertaking now in question is limited to payment of damages for bodily injuries occasioned by a limited category of tort feasors, namely uninsured operators against whom the insured is ‘legally entitled to recover.’ See 24 Insurance Counsel Journal 134, 136-137. Thus uninsured motorist insurance more closely resembles accident insurance restricted to a limited class of accident, than its does the type of insurance commonly regarded as indemnity insurance. See 44 CJS supra Insurance § 2, p. 474.’ Kirouac v. Healey, supra (1962), NH, 181 A. 2d 634, 1. c. 636.” State ex rel. State Farm Mut. Auto. Ins. Co. v. Craig (Mo. App. 1963), 364 S. W. 2d 343, —, 95 A. L. R. 2d 1321, 1326.
“The type of insurance here involved is new and different. It defies efforts to categorize it or bring it into some pre-existing classification. In legal effect it appears to be a guarantee by the insurer to a motorist, who by reason of a future automobile accident might become the prospective creditor of the owner or operator of an uninsured automobile, that it, the insurer, as the guarantor will pay such damages as the insured might be entitled to recover. Such a contract in other times would have been considered foolhardy, but installment purchases, the automobile age, the vast number of automobile accidents, and the development of actuarial skill, have all contrived to create this product of our times. If we accept it as alleviating to some extent the injuries inflicted by uninsured motorists, then the insurer is entitled to have its liability legally determined. With respect to the insurance policy here involved, intervention is the only practicable remedy.” Wert v. Burke (Ill. App. 1964), 197 N. E. 2d 717, 719.
“As pointed out in Kirouac v. Healey, 104 N. E. 157, 160, 181 A. 2d 634, uninsured motorists’ insurance is not liability insurance in any sense, but resembles limited accident insurance. It does not undertake to protect the insured against liability he may incur to others, as does liability insurance but rather insures him against losses occasioned to him by a limited group of tort feasors. Kirouac v. Healey, supra, 160, 181 A. 2d.” Hein v. Nationwide Mut. Ins. Co. (1965), 106 N. H. 378, 213 A. 2d 197, 199.
. See Motorists’ Mutual Ins. Co. v. Johnson (1966), 139 Ind. App. 622, 631, 218 N. E. 2d 712, 716, 8 Ind. Dec. 687, 693.
. The Missouri Court of Appeals was very careful to give its decision an entirely narrow effect as precedent. A limitation which the courts of many other states have ignored in their haste to find an easy alternative to what they apparently view as a harsh result where fundamental concepts of due process are applied. The Missouri court said:
“For the reason assigned, we believe that, under the facts peculiar to this case, the relator should be permitted to intervene as a matter of right. [Italics by the Missouri court.]
“The subject of the ‘uninsured motorist’ coverage is a new one. . . . The courts have not yet had time or opportunity to work out the mechanics of procedure applicable to this innovation. . . . What we have said and held is of course applicable only to the case; and in consideration of circumstances which involve a situation where the insurer has been dragged into the lawsuit by its heels and the trial court has refused to let it out; and that it is an unwilling party to a suit in which (unless by some special order of arrangement) there will be but one final judgment. ... As to the various and sundry questions which may or might arise concerning the procedure to be involved in this character of insurance, we express no opinion and intend no holding except as applied to the special situation before us.” 364 S. W. 2d at 349, 95 A. L. R. 2d 1329.
. An example of such a statute is Code of Georgia (1960 Rev.-1969 Supp.) § 56-4071 (d) which reads:
“In cases where the owner or operator of any vehicle causing injury or damages be known, and either or both be named as defendants in any action for such injury or damages, a copy of such action and all pleadings thereto shall be served as prescribed by law upon the insurance company issuing the policy as though such insurance company were actually named as a party defendant. If either the owner or operator of any vehicle causing injury or damages be unknown, an action may be instituted against the unknown defendant as ‘John Doe,’ and a copy of such action and all pleadings thereto shall be served as prescribed by law upon the insurance company issuing the policy as though such insurance company were actually named as a party defendant, and the insurance company shall have the right to file pleadings and take other action allowable by law in the name of John Doe or itself. In any case herein where service upon an insurance company is prescribed, the clerk of the court in which the action is brought shall have same accomplished by issuing a duplicate original copy for the sheriff or marshal to place his return of service in the same form and manner as prescribed by law for a party defendant. The return of service upon the insurance company shall in no case appear upon the original pleadings in such case. In the case of a known owner or operator of such vehicle, either or both of whom is named as a defendant in such action, the insurance company issuing the policy shall have the right to file pleadings, and take other action allowable by law in the name of either the known owner or operator or both, or itself.
“A motor vehicle shall not be deemed to he an uninsured motor vehicle within the meaning of this section when the owner or operator of such motor vehicle has deposited security, pursuant to the provisions of Section 9 of an Act providing for the giving of security by owners and operators of motor vehicles [Chapter 92A-6], in the amount of $10,000 where only one person was injured or killed, $20,000 where more than one, or $5000 for property damage” (Emphasis added)
. The permission to sue clause in the pre-1963 standard uninsured motorist coverage reads:
Exclusions
“This endorsement does not apply:
(a) to bodily injury to an insured or care or loss of services recoverable by an insured, with respect to which such insured, his legal representative or any person entitled to payment under this endorsement shall, without written consent of the company, make any settlement with or prosecute to judgment any action against any person or organization who may be legally liable therefor;”
See Widiss UNINSURED MOTORIST COVERAGE, § 7.4, p. 257; App. A., p. 301.
The majority opinion quotes Widiss, § 7.5, p. 258, which section refers only to the above quoted clause and not to the consent-to-be-bound clause. The latter clause (in the policy at bar) reads:
“No judgment against any person or organization alleged to be legally responsible for the bodily injury shall be conclusive as between the insured and the company, of the issues of liability of such person or organization or of the amount of damages to which the insured is legally entitled unless such judgment is entered pursuant to an action prosecuted by the insured with the written consent of the company.”
. Allstate Ins. Co. v. Pietrosh (Nevada), 454 P. 2d 106, 108, quoted by majority.