170 S.E. 346 (S.C. 1933), 13669, Tyger River Pine Co. v. Maryland Cas. Co.

Docket Nº:13669.
Citation:170 S.E. 346, 170 S.C. 286
Opinion Judge:BONHAM, Justice.
Party Name:TYGER RIVER PINE CO. v. MARYLAND CASUALTY CO.
Attorney:Osborne & Butler, of Spartanburg, for appellant. J. Gordon Hughes, of Union, and Donald Russell, of Spartanburg, for respondent.
Case Date:July 17, 1933
Court:Supreme Court of South Carolina
 
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Page 346

170 S.E. 346 (S.C. 1933)

170 S.C. 286

TYGER RIVER PINE CO.

v.

MARYLAND CASUALTY CO.

No. 13669.

Supreme Court of South Carolina

July 17, 1933

Appeal from Common Pleas Circuit Court of Union County; T. S. Sease, Judge.

Action by Tyger River Pine Company against Maryland Casualty Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

Osborne & Butler, of Spartanburg, for appellant.

J. Gordon Hughes, of Union, and Donald Russell, of Spartanburg, for respondent.

BONHAM, Justice.

Erwin Chesser was, in January, 1928, in the employ of the respondent at its lumber mill in Union county, S.C. On the 18th day of January he suffered an injury while engaged in the duties of his employment which resulted in the permanent injury of one of his arms. The Tyger River Pine Company carried a policy in Maryland Casualty Company which insured it for any sum not exceeding $5,000 it might be called on to pay for injuries suffered by any of its employees Efforts at settlement of any claim Chesser might make against respondent failed of consummation. Whereupon he brought suit against the Tyger River Pine Company and recovered a verdict for $7,000, which was affirmed on appeal. See Chesser v. Tyger River Pine Co., 155 S.C. 356, 152 S.E. 646. Thereupon the respondent brought this action against the appellant. A demurrer was interposed by the defendant, the appellant here, which was heard on circuit, and overruled, by Judge Ramage. His order in the premises was affirmed by this court. See Tiger River Pine Co. v. Maryland Casualty Co., 163 S.C. 229, 161 S.E. 491, 492.

This action is brought to recover the sum of $2,162.20 which the Tyger River Pine Company alleges it was compelled to pay to Chesser on his judgment against it over and above the amount of $5,000 of the policy which the Tyger River Pine Company carried in the casualty company. The complaint alleges the issuance to plaintiff by the casualty company, in consideration of a stated premium, of a policy which undertook to insure it, for one year, against loss for any liability imposed by law upon Tyger River Pine Company for damages for any injuries, including death, resulting therefrom, accidentally suffered, or alleged to have been suffered, by any employee of the plaintiff, while engaged within his employment, limited to $5,000 for any one person. The complaint alleges,

Page 347

further, that the defendant, [170 S.C. 288] Maryland Casualty Company, by the terms of the policy contracted to defend, in the name and on behalf of the plaintiff, the defendant to have exclusive control of such defense, any suits or other proceedings which might at any time be instituted against the plaintiff on account of bodily injuries suffered, or alleged to be suffered, by any employee of the plaintiff, even though such claims and suits were wholly groundless and false or fraudulent, and to pay all costs taxed against plaintiff in such suits; that under the provisions of the policy the casualty company reserved to itself the exclusive right to compromise or settle all suits or claims, and the plaintiff was specifically prohibited from making any compromise or settlement, or making any expenditures in connection with any such injuries unless first authorized to do so by the defendant, in writing. The complaint then alleges that an accident befell one of its employees, Erwin Chesser, while in plaintiff's employ, by which he sustained serious bodily injuries; notice of which accident was immediately given to defendant; that for practically seven months thereafter the defendant dallied and delayed in...

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