Aetna Life Ins. Co. v. Bowling Green Gaslight Co.

• Decision Date: 26 November 1912
• Citation: 150 S.W. 994,150 Ky. 732
• Parties: ÆTNA LIFE INS. CO. v. BOWLING GREEN GASLIGHT CO.
• Court: Kentucky Court of Appeals

150 S.W. 994

150 Ky. 732

ÆTNA LIFE INS. CO. v. BOWLING GREEN GASLIGHT CO.

Court of Appeals of Kentucky.

November 26, 1912

Appeal from Circuit Court, Warren County.

Action by the Bowling Green Gaslight Company against the Ætna Life Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Sims &amp Rodes, of Bowling Green, for appellant.

T. W. &amp R. C. P. Thomas, of Bowling Green, for appellee.

CARROLL J.

The appellant is a liability or indemnity insurance company, and in March, 1907, issued to the appellee gaslight company a policy insuring it against loss that it might sustain on account of being required to pay damages to persons injured by its plant. Among other conditions the policy contained the following:

"(A) The company's liability for a loss on account of an accident resulting in bodily injuries to or in the death of one person is limited to five thousand dollars ($5,000.00); subject to the same limit for each person, the company's total liability for loss on account of any one accident resulting in bodily injuries to or in the death of more than one person is limited to ten thousand dollars ($10,000.00).

"The company will, however, as provided in conditions 'D' and 'E' hereof, pay the expense of litigation in addition to the sum herein limited, provided that if the company shall elect to pay the assured the sum as herein limited it shall not be liable for further expense of litigation after such payment shall have been made. ***

"(D) If thereafter any suit is brought against the assured to enforce a claim for damages on account of accident covered by this policy, the assured shall immediately forward to the company's home office every summons or other process as soon as the same shall have been served on him, and the company will, at its own cost, defend such suit in the name and on the behalf of the assured, unless the company shall elect to settle the same or to pay the assured the indemnity as provided for in condition 'A' hereof.

"(E) The assured, whenever requested by the company, shall aid in effecting settlements, secure information and evidence, the attendance of witnesses, and in prosecuting appeals, but the assured shall not voluntarily assume any liability or interfere in any negotiation for settlement, or in legal proceeding, or incur any expense, or settle any claim, except at his own cost, without the written consent of the company previously given, except that the assured may provide, at the company's expense, such immediate surgical relief as is imperative at the time of accident."

While this policy was in full force, a man named Dean came in contact with one of appellee's wires and was so injured that in a few days thereafter he died. The appellee gave immediate notice to the insurance company of the accident, and in all other respects fully complied with and observed all the conditions in the policy imposing duties upon it. Soon after the death of Dean his executrix brought suit to recover damages for his death, and this suit was defended by counsel representing the appellant. Upon a trial in the circuit court, judgment was rendered against the appellee in favor of the executrix for $6,750 on June 28, 1910, and the appellee, at the request of appellant, prayed an appeal to the court of appeals, which was granted. Thereafter on July 20, 1910, the judgment appealed from was superseded by the execution of an appeal bond, surety upon which was furnished by appellant, and, when the case came up for rehearing in the Court of Appeals, the judgment appealed from was affirmed, with 10 per cent. damages, as authorized by law. After the judgment had been affirmed by the Court of Appeals, it was in due time satisfied by the appellee by the payment of $7,998.50, which included the amount of the judgment rendered in the circuit court, with interest thereon from the date of that judgment until its payment, amounting to $428.62, the damages awarded in the Court of Appeals, amounting to $680, and the court costs amounting to $139.88. The appellant company, being only liable in the principal sum of $5,000, paid this amount to appellee, after the case had been affirmed in the Court of Appeals, but refused to pay the damages awarded by the Court of Appeals, or any part of the interest that accrued on the judgment to the extent of $5,000, from the time of its rendition until it was satisfied, or the court costs of the action, and this suit was brought by appellee to recover the costs and damages, as well as the interest on $5,000 from the date of the judgment in the circuit court until the $5,000 was paid by appellant. In the lower court a judgment was given for these amounts, and this appeal is prosecuted to obtain a reversal of that judgment.

On behalf of appellant, the argument is made that by the terms of the policy its liability was fixed at $5,000, and that having paid this amount, it is not liable for the sums appellee paid in damages, interest, and costs or any part thereof. It is very true that the policy stipulates in clause "A," that the liability of the company in cases like this is limited to $5,000, but in the clause thus limiting its liability is a provision that it will, "as provided in conditions 'D' and 'E' hereof, pay the expenses of litigation in addition to the sum herein limited." In condition "D" it is stipulated that the company would, "at its own cost," defend any suit that might be brought, unless it elected to settle the same or paid the assured the indemnity provided for, and condition "E" gives the insurance company complete control of the settlement of all claims, for which it might be liable,...