144 S.W. 883 (Mo.App. 1912), Mears Mining Company v. Maryland Casualty Company

Citation:144 S.W. 883, 162 Mo.App. 178
Opinion Judge:GRAY, J.
Party Name:MEARS MINING COMPANY, Respondent, v. MARYLAND CASUALTY COMPANY, Appellant
Attorney:O. L. Cravens for appellant. George Hubbert for respondent.
Case Date:March 04, 1912
Court:Court of Appeals of Missouri
 
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Page 883

144 S.W. 883 (Mo.App. 1912)

162 Mo.App. 178

MEARS MINING COMPANY, Respondent,

v.

MARYLAND CASUALTY COMPANY, Appellant

Court of Appeals of Missouri, Springfield

March 4, 1912

Appeal from Newton Circuit Court.--Hon. Carr McNatt, Judge.

AFFIRMED (upon remittitur).

O. L. Cravens for appellant.

(1) Plaintiff cannot recover because it violated certain policy conditions. Ins. Co. v. Myers, 62 Oh. St. 529, 57 N.E. 458; Brown v. Railway Assoc., 45 Mo. 221; Dick v. Ins. Co., 10 Mo.App. 376, 81 Mo. 103; Carr v. Ins. Co., 100 Mo.App. 602; Hoover v. Ins. Co., 93 Mo.App. 111. (2) Under defendant's letter of June 18, 1910, to plaintiff, plaintiff became the agent of defendant to compromise the Overby judgment and could not act in its own interest but owed defendant the duty of acting strictly in its interest, and defendant is entitled to have pro rated the amount of the settlement. 31 Cyc. 1451, 1435; 2 Ency. L. & P., 1057, 1058, 1066; Bent v. Priest, 86 Mo. 482; Patterson v. Glass Co., 72 Mo.App. 492; Marshall v. Ferguson, 94 Mo.App. 175. (3) Even if plaintiff was not acting as the agent of defendant in the settlement of the Overby judgment, the facts disclosed compel a finding that the parties agreed between themselves as to the amount that would be due from defendant upon a settlement by plaintiff with Overby. Ins. Co. v. Witty, 208 Pa. 569, 57 A. 990; 9 Cyc. 257, 270; 1 Beach Mod. Law of Contract, sec. 57; Lunstrass v. Ins. Co., 48 Mo. 201; Allen v. Chouteau, 102 Mo. 309; Stotesburg v. Massengale, 13 Mo.App. 221; Lancaster v. Elliot, 28 Mo.App. 93; Gardner v. Crenshaw, 122 Mo. 79; Am. Pub. Co. v. Walker, 87 Mo.App. 503; Brown v. Smith, 113 Mo. 39; Smith v. Williams, 123 Mo.App. 485; Sawyer v. Walker, 204 Mo. 159. (4) Under the indemnity contract plaintiff can recover only five sevenths of the limit of defendant's liability, Lead & Zinc Co. v. Ins. Co., 152 Mo.App. 339; Land Co. v. Rhodes, 54 Mo.App. 129; Hayden v. Lauffenberger, 157 Mo. 88; Thompson v. Kellogg, 23 Mo. 281; Ridge v. Olmstead, 73 Mo. 578; Cowgill v. Robberson, 75 Mo.App. 42; Friermuth v. McKee, 86 Mo.App. 64; Way v. Caddell, 82 Mo.App. 144; Brown Banking Co. v. Baker, 99 Mo.App. 660; Winter v. Railroad, 73 Mo.App. 173, 160 Mo. 159; Chamberlain v. Smith, 110 Mo.App. 657; Tucker v. Dolan, 109 Mo.App. 442; Hanson v. Crawford, 130 Mo.App. 232; Clay v. Lakeman, 101 Mo.App. 563; Reinhold v. Kerrigan, 85 Mo.App. 256; Bassett v. Kern, 141 Mo.App. 24; Ewing v. Reilly, 34 Mo. 113; Bank v. Pettit, 85 Mo.App. 499; Franz v. Morgan, 6 Phila. 8; Allen v. Ins. Co., 145 F. 881. (5) The general words of section 7068 cannot properly be construed to include policies of the kind in question here. Langstaff v. Rock, 13 Mo. 579; Ex parte Neet, 157 Mo. 527; St. Louis v. Laughlin, 49 Mo. 559; State ex rel. v. Ennis, 79 Mo.App. 12; Bramell v. Adams, 146 Mo. 70; Joplin v. Leckie, 78 Mo.App. 70; McCutcheon v. Railroad, 72 Mo.App. 271; Hale v. Stimson, 198 Mo. 158; Miller v. Wagenhauser, 18 Mo.App. 14; Grumley v. Webb, 44 Mo. 457; Dart v. Bagley, 110 Mo. 42; Knox City v. Thompson, 19 Mo.App. 523; State ex rel. v. May, 106 Mo. 505.

George Hubbert for respondent.

(1) The jurisdiction of this court and the legality of its judgment and mandate in the Overby case, stand beyond reasonable question; and loss under the policy sued by payment of $ 5203.25 to satisfy the judgment is equally clear as the basis of appellant's legal liability under the law. Overby v. Cas. Co., 144 Mo.App. 363; Lead & Zinc Co. v. Ins. Co., 152 Mo.App. 333; State ex rel. v. Nixon, 232 Mo. 106. (2) Even if no judgment had ever been rendered, nor any defense made, on account of the failure of the insuring company to assume the defense under its policy, the assured would nevertheless be free from the onerous conditions of suffering and paying judgment and justified in making the best available terms of reasonable settlement with the claimant, in such case the insurer could not deny liability. News Co. v. Fidelity Co., 83 S.W. 620; Railroad v. News Co., 151 Mo. 390; St. Joseph v. Railroad, 116 Mo. 643; Beef Co. v. Casualty Co., 201 U.S. 173, 50 L.Ed. 712. (3) The amount of such payment or true cost to respondent in money, in satisfaction of the judgment, in whole or in part, marks the sum of the liability of the appellant for the loss, within the stipulated limits, with costs additional, equalling $ 5203.25, with interest from date of loss by payment; and this is true though such payment might have been through other persons, or by other than cash means, if of substantial money value. Cas. Co. v. Light Co., 157 F. 514; Stembon v. Engine Co., 119 N.W. 308, 20 L. R. A. (N. S.) 856, 956; Kennedy v. Fidelity Co., 110 N.W. 97, 9 L. R. A. (N. S.) 478; Railroad v. Cas. Co., 96 P. 509, 18 L. R. A. (N. S.) 121; Ins. Co. v. Moses, 49 A. (N. J. Eq.) 720, 92 A. S. R. 663. (4) Courts seek to conserve rather than destroy, and the first and greatest rule of all that bears to a true interpretation of the statute (section 7068), against vexatious delay in payment is, that "words and phrases shall be taken in their plain or ordinary and usual sense. R. S. 1909, sec. 8057; Interstate Drainage Co. v. Board, 158 F. 273; U. S. v. Mescall, 215 U.S. 26, 54 L.Ed. 77; Bank v. Ripley, 161 Mo. 126; Ex parte v. Smith, 231 Mo. 119; State v. Eckert, 232 Mo. 49; Rissell v. Taylor, 4 Mo. 550; Henderson v. Wabash, 81 Mo. 605; State v. Broderick, 7 Mo.App. 20; Wonner v. Carterville, 142 Mo.App. 126; State ex rel. v. Yates, 231 Mo. 276; State ex rel. v. Harter, 188 Mo. 516; Keeney v. McVoy, 206 Mo. 64; State v. Weber, 205 Mo. 43; Armstrong v. Modern Brotherhood, 132 Mo.App. 171.

OPINION

Page 884

[162 Mo.App. 183] GRAY, J.

This action is predicated upon an employer's liability policy, issued by the appellant to respondent, July 2, 1907, by the terms of which the former agreed for a valuable consideration, to indemnify the respondent for a period of twelve months, against loss from liability that might be imposed by law upon respondent not exceeding $ 5000 on account of death or bodily injuries suffered by any one employed by the respondent. At the time the policy was issued, the respondent was engaged in mining in Newton county, and on the 30th day of July of that year, one Frank Overby, an employee of respondent, was killed in its mines. Mr. Overby's widow instituted suit against the respondent to recover damages for her husband's death, and secured a judgment for $ 6000. The appellant took charge of that suit, under the terms of the policy, and caused the same to be appealed, and the judgment was affirmed by this court on the 2nd day of May, 1910. After the affirmance, the respondent negotiated a settlement with the widow, by the terms of which the judgment, which at said time amounted, with interest and costs, to a little over $ 7000, was settled for the sum of $ 5203.35, which was the full amount the appellant was liable for under the terms of its policy, and which amount was paid to the widow and the judgment satisfied by her assignee. This suit is instituted to recover the amount so paid, together with the sum of $ 1100, which plaintiff...

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