200 P.2d 407 (Okla. 1948), 33030, National Mut. Cas. Co. v. Britt

Docket Nº:33030.
Citation:200 P.2d 407, 203 Okla. 175, 1948 OK 256
Opinion Judge:WELCH, Justice.
Party Name:NATIONAL MUTUAL CASUALTY CO. v. BRITT et al.
Attorney:[203 Okla. 176] Hudson, Hudson, & Wheaton, of Tulsa, for plaintiff in error. Frank Nesbitt and Nelle Nesbit, both of Miami, for defendants in error.
Case Date:November 23, 1948
Court:Supreme Court of Oklahoma

Page 407

200 P.2d 407 (Okla. 1948)

203 Okla. 175, 1948 OK 256

NATIONAL MUTUAL CASUALTY CO.

v.

BRITT et al.

No. 33030.

Supreme Court of Oklahoma

November 23, 1948

Rehearing Denied Feb. 1, 1949.

Appeal from District Court, Ottawa County; Wm. W. Thomas, Judge.

Action by Carl M. Britt and Glen Delbert Britt, a copartnership doing business as the Britt Milling Company against the National Mutual Casualty Co., for damages. Judgment for plaintiffs and defendant appeals.

Affirmed.

Page 408

Syllabus by the Court.

1. An indemnity insurer who stands to lose only a part of a litigated claim in case he refuses to settle it, while the insured stands to lose the balance, is bound to give the interests of the insured at least as much consideration as it does its own in determining whether or not to effect a settlement.

2. It is not misleading or prejudicial to the rights of the defendant for the trial court, in the introductory part or paragraphs of its instructions to set out all of the claims of plaintiff in reference to defendant's conduct preceding the submission of an issue of bad faith and when the rights and duties of the parties are thereafter set forth.

3. An instruction not properly applicable to the issues involved, or the proof, should not be given, but will not warrant a reversal of the case, unless it is apparent that the erroneous instruction probably misled the jury.

[203 Okla. 176] Hudson, Hudson, & Wheaton, of Tulsa, for plaintiff in error.

Frank Nesbitt and Nelle Nesbit, both of Miami, for defendants in error.

WELCH, Justice.

At the times material to this action the plaintiffs, Carl M. Britt and Glen Delbert Britt, a co-partnership doing business as Britt Milling Company, carried an insurance policy with the defendant, The National Mutual Casualty Company, a corporation. The defendant, as insurer, agreed to indemnify plaintiffs against all liability imposed by law for damages on account of injuries to plaintiffs' employees,

Page 409

but not in excess of $5000.00 as to any one employee.

On October 9, 1941, one James Doty, an employee of the plaintiffs, was caught under a slide of chats and smothered to death. Thereafter Mayme Doty, as administratrix of the estate of James Doty, deceased, filed suit and recovered a judgment against the plaintiffs for $10,000.00. The defendant herein conducted the defense of that suit in the name and behalf of the plaintiffs herein. The judgment became final; Britt et al. v. Doty, Adm'x., 195 Okl. 620, 161 P.2d 521, and was paid, one-half by the plaintiffs herein and one-half by the defendant herein.

Plaintiffs brought this action in damages against defendant seeking judgment for $5000.00, the amount over the policy limit, which plaintiffs paid on the judgment, charging that defendant acted in bad faith in refusing to accept offers of compromise and settlement for amount less than the policy limit made by the administratrix and that in the conduct of the defense of the suit the defendants acted in bad faith.

The defendant made denial of all charges of bad faith and asserted faithful performance of all the terms of the policy. Verdict was returned in favor of plaintiffs and against the defendant for the sum of $5000.00 and judgment was entered thereon and defendant brings this appeal.

The record discloses that on and prior to October 9, 1941, plaintiffs operated a mill for the extraction of the mineral content of chats and tailings. The chats were hauled in trucks from a chat pile which was about two miles from the mill. The trucks were operated for plaintiffs by James Doty, Fred Holt and Henry Wade. These trucks were loaded at the chat pile by a power shovel which was operated by Le Roy Wade, plaintiff's foreman at the chat pile. Joe Nolan was employed by plaintiffs as powder man, to set and fire shots of explosives in the chat pile to cause chats to slide down from the top of the pile within reach of the dipper of the loading shovel.

On the morning of October 9, 1941, an old drill casing was sticking out of the ground near the shovel and within a few feet of the chat pile. An explosive charge was placed around the casing and at about the same time a shot was set high up in the chat pile. After these charges had been exploded Holt and Doty walked to the casing and shortly thereafter a chat slide occurred which caught and killed Doty. The employees above named were the only persons in the vicinity of the chat pile at the time.

Following the death of Doty these other named employees, as requested, went to the office of an attorney for the defendant and were interviewed and signed written statements. All the statements were of similar import and there were no conflicts in the statements. The statement signed by Fred Holt read in part as follows:

'Sometime shortly after nine this morning my truck stopped a short distance Northeast of the shovel at the tailing pile, Joe Nolan was fixing a shot at a casing just West of the shovel, the shot Nolan was fixing was to cause tailings to slide toward the shovel. After the shots went off we waited a few minutes until smoke cleared, then LeRoy[203 Okla. 177] Wade, shovel operator, moved shovel toward tailing pile and Doty and myself went to the casing which was about 3 or 4 feet west of the shovel, we went of our own accord just out of curiosity, while we were waiting to get our trucks loaded. Henry Wade was to load first. Before first shovel full was picked up shovel operator pushed the old casing with shovel, this was just before Doty and me went to casing.

'When we went to casing just West of shovel the tailings were about six feet south of casing, Doty and me looked at casing, pushed on it and I was just North of casing, Doty just South of it, I looked up saw tailings sliding towards us. I hollered 'My God, Jim, run.' I ran North and looked back and saw tailings strike Jim Doty below knees, throw him down and he was covered completely up. * * *

'During time I worked with Jim Doty we saw several slides at this tailing pile and we both knew it was dangerous to be near edge of tailings when the slides happen. We also knew that sometimes tailings did not slide much at shot and then in

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few minutes there would be larger slide. Carl Britt had told me and I heard him tell Jim Doty to watch out for slides and keep away from tailing slides as he would rather get a shovel or truck covered up than to get a man hurt. He told us this at different times one time I remember was about a month ago.'

On August 13, 1942, the administratrix of James Doty, deceased, filed suit against the plaintiffs for damages, alleging deceased had no knowledge of shots having been fired in the chat pile and charging negligence in the failure to warn the deceased about the shots and the resulting dangerous condition of the chat pile and the impending probability of a slide.

On August 23, 1942, the deposition of LeRoy Wade was taken. He was cross-examined by the attorney who had received the written statement from him the evening of Doty's death. Wade testified that after the shots were placed around the casing and up on the chat pile and just before they were exploded he loaded Doty's truck and Doty drove away; that a round trip to the mill was usually made by the trucks in about fifteen minutes. That the slide which buried Doty occurred about seven or eight minutes after the shots exploded.

On August 26, 1942, and on November 25th, 1942, an amended petition and a second amended petition was filed by the administratrix. The charge of negligence against plaintiffs as plead in the second amended petition, was that plaintiffs' employees had fired shots in the chat pile during the absence of Doty, which shots had failed to knock the chats down at the time of the explosion, but had loosened them; that Doty knew nothing of that fact and when he returned to the chat pile he was not warned thereof. The petition set forth the age, earning capacity, life expectancy of the deceased, and the contributions he had made to the administratrix and asserted pecuniary loss of $21,600.00.

On April 2, 1943, the deposition of Fred Holt was taken wherein he testified that Doty was not present at the time the shots were discharged and was not told of the shot having been fired in the chat pile.

The case between the administratrix and plaintiffs was tried on May 25, 1943, with the result hereinbefore noted.

Herein the pleadings, instructions given and mandate in that case were introduced in evidence together with a transcript of the testimony given in that case by LeRoy Wade and Henry Wade.

The insurance policy, the written statement of Fred Holt and the deposition of...

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