Nat'l Mut. Cas. Co. v. Britt
| Decision Date | 23 November 1948 |
| Docket Number | Case Number: 33030 |
| Citation | 200 P.2d 407,1948 OK 256,203 Okla. 175 |
| Parties | NATIONAL MUT. CAS. CO. v. BRITT |
| Court | Oklahoma Supreme Court |
¶0 1. INSURANCE - Duty of insurer to give interests of insured as much consideration as its own in determining whether to effect a settlement.
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. TRIAL - Instructions not misleading or prejudicial which set out all of claims of plaintiff preceding submission of issue of bad faith.
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. APPEAL AND ERROR - Harmless error in giving instruction inapplicable to case.
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.
Appeal from District Court, Ottawa County; Wm. W. Thomas, Judge.
Action by Carl M. Britt and Glen Delbert Britt, a copartnership, against the National Mutual Casualty Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Hudson, Hudson, & Wheaton, of Tulsa, for plaintiff in error.
Frank Nesbitt and Nelle Nesbitt, both of Miami, for defendants in error.
¶1 At the times material to this action the plaintiffs, Carl M. Britt and Glen Delbert Britt, a copartnership 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, but not in excess of $5,000 as to any one employee.
¶2 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. 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 Okla. 620, 161 P.2d 521, and was paid, one-half by the plaintiffs herein and one-half by the defendant herein.
¶3 Plaintiffs brought this action in damages against defendant seeking judgment for $5,000, 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 defendant acted in bad faith.
¶4 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 $5,000 and judgment was entered thereon, and defendant brings this appeal.
¶5 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 Leroy Wade, plaintiff's foreman at the chat pile. Joe Nolan was employed by plaintiffs as powderman, 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.
¶6 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.
¶7 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:
¶8 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.
¶9 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 15 minutes. That the slide which buried Doty occurred about seven or eight minutes after the shots exploded.
¶10 On August 26, 1942, and on November 25, 1942, an amended petition and a second amended petition was filed by the administratrix. The charge of negligence against plaintiffs as pleaded in the second amended petition, was that plaintiff's 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.
¶11 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.
¶12 The case between the administratrix and plaintiffs was tried on May 25, 1943, with the result hereinbefore noted.
¶13 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.
¶14 The insurance policy, the written statement of Fred Holt, and the deposition of Fred Holt were introduced in evidence herein, and Joe Nolan, LeRoy Wade and Henry Wade each testified in this case and to the effect that Doty was not present when the shots were fired and had not been told that the shots had been fired. The plaintiff Carl Britt testified that on the day of Doty's death and a short time thereafter, a general agent of the defendant company told him to make no effort toward settlement of any claim and to keep his nose out of it; that there was no liability. That three or four months after Doty's death the funeral director told him the case could be settled for $1,700 to $1,800, and he reported the statement of this third person to the adjuster of the defendant company. That thereafter and before a suit had been filed, he and an attorney for the defendant had a conversation with the attorneys for the administratrix who told them that they had been employed to file suit and that the case could then be settled for $3,900.
¶15 That after the suit had been filed by the administratrix an offer of settlement within the policy limits was made to the plaintiff Carl Britt. Britt advised the...
To continue reading
Request your trial
-
State Farm Mut. Auto. Ins. Co. v. Marcum
...Fire & Casualty Co. v. Robert, 186 F.2d 921; Hartford Acc. & Indemn. Co. v. Vanderbilt University, 218 F.2d 818; National Mut. Cas. Co. v. Britt, 203 Okl. 175, 200 P.2d 407, 218 P.2d 1039; Southern Fire & Casualty Co. v. Norris, 35 Tenn.App. 657, 250 S.W.2d 785. See Noshey v. American Auto.......
-
Comunale v. Traders & General Ins. Co.
...5 Cir., 61 F.2d 446, 448; American Fidelity & Cas. Co. v. All American Bus Lines, 10 Cir., 190 F.2d 234, 238; National Mutual Casualty Co. v. Britt, 203 Okl. 175, 200 P.2d 407, 411, 218 P.2d 1039; Southern Fire & Casualty Co. v. Norris, 35 Tenn.App. 657, 250 S.W.2d 785, 790; Tyger River Pin......
-
Magnum Foods, Inc. v. Continental Cas. Co.
...be within policy limits. Hazelrigg v. American Fidelity & Cas. Co., 241 F.2d 871, 873 (10th Cir.1957) (citing National Mut. & Cas. Co. v. Britt, 203 Okl. 175, 200 P.2d 407 (1948)). An insurer's obligation to negotiate settlements honestly and fairly arises from contract, 7C Appleman, Insura......
-
Wasserman v. Buckeye Union Cas. Co.
...v. All American Bus Lines (10th Cir. 1951), 190 F.2d 234, cert. den. 342 U.S. 851, 72 S.Ct. 79, 96 L.Ed. 642; National Mut. Cas. Co. v. Britt (1948), 203 Okl. 175, 200 P.2d 407; Farm Bureau Mut. Auto Ins. Co. v. Violano (Ind. Cir. 1941), 123 F.2d 692, cert. den. 316 U.S. 672, 62 S.Ct. 1043,......