157 F. 514 (8th Cir. 1907), 2,553, Maryland Cas. Co. of Baltimore, Md., v. Omaha Elec. Light & Power Co.

Docket Nº:2,553.
Citation:157 F. 514
Case Date:November 06, 1907
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 514

157 F. 514 (8th Cir. 1907)




No. 2,553.

United States Court of Appeals, Eighth Circuit.

November 6, 1907

Page 515

This was a suit instituted by the Omaha Electric Light & Power Company against the casualty company to recover on an employer's indemnity contract issued by defendant to plaintiff's assignor, the New Omaha Thomson-Houston Electric Light Company, hereinafter called the Thomson Company, to indemnify it for the period of one year against loss for damages sustained by its employes and caused by its negligence. While the policy was in force one Dent, an employe, was accidentally injured and died. The administratrix of his estate brought an action in the district court of Nebraska against the Thomson Company, claiming that the injury and death resulted from its negligence. The action resulted January 3, 1902, in a judgment against the Thomson Company for $5,000 and costs. This was taken by petition in error to the Supreme Court of Nebraska, where, on April 22, 1903, the judgment was affirmed. Later a rehearing was granted, and on June 8, 1905, the judgment was again and finally affirmed. After the rendition of the judgment and its first affirmance in the Supreme Court, when the corporate existence of the Thomson Company was about to expire by limitation, the plaintiff in this action, the Omaha Electric Light & Power Company, was incorporated to take over its assets, assume its liabilities, and succeed to its business. As contemplated, it took over by assignment, amongst other assets, the claim against the casualty company on its policy of indemnity, and assumed the liability of that company on the judgment obtained by Dent's administratrix. These things it did without consent of the casualty company. After this reorganization on June 8, 1905, the Supreme Court finally affirmed the Dent judgment, and the casualty company requested the Thomson Company to pay the same, and recognized its obligation to reimburse it. The successor of the Thomson Company, the plaintiff herein, pursuant to that request upon its assignor, and pursuant to its agreement with its assignor to pay all its liabilities, on July 21, 1905, paid the judgment, amounting in principal to $5,000, in interest from January 3, 1902, to July 21, 1905, to $1,326.10, and in costs $115.30, making an aggregate of $6,441.40, and presented a receipt to the defendant and demanded to be reimbursed in that sum. The casualty company denied liability totally (1) because its contract was not with the plaintiff but only with its assignor, the Thomson Company, and because it had never consented to an assignment of the claim against it by the Thomson Company to the plaintiff, and (2) because the Thomson Company had not itself ever paid the judgment debt, and denied liability partially on the ground that in any event the limit of its liability for the death of any one person was $5,000, and that it was not liable for the interest which accrued between the date of the rendition of the original judgment, January 3, 1902, and the date of the payment by the plaintiff, July 21, 1905, or for the costs of the suit of Dent against the Thomson Company.

The rights of the parties upon the issues joined between them depend upon the application of the following provisions of the policy of indemnity: (1) 'Any assignment of interest under this policy shall be void unless the written consent of the company is indorsed hereon by one of its officers.' (2) 'No action shall lie against the company as respects any loss under this policy unless it shall be brought by the assured himself to reimburse him for loss actually sustained and paid by him and in satisfaction of a judgment after trial of the issue.' (3) 'The company's liability for an accident resulting in injuries to or in the death of one person is limited to $5,000 and subject to the same limit for each person. The total liability for any one accident resulting in injuries to or in the death of any number of persons is limited to $10,000.' (4) 'If any suit is brought against the assured to enforce a claim for damages on account

Page 516

of an accident covered by this policy immediate notice thereof shall be given to the company and the company will defend against such proceeding in the name and on behalf of the assured or settle the same at its own cost unless it shall elect to pay the assured the indemnity provided for in clause A of the special agreements as limited therein. ' (Clause A there referred to is the third provision of the policy just quoted.)

On the foregoing facts the court below rendered a judgment for the full amount paid by plaintiff in satisfaction of the Dent judgment, including the interest of $1,326.10 and costs, $115.30, as well as for...

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