Aetna Life Insurance Company v. Roper

• Decision Date: 17 May 1932
• Citation: 243 Ky. 811
• Parties: Aetna Life Insurance Company v. Roper.
• Court: Supreme Court of Kentucky

243 Ky. 811

Aetna Life Insurance Company v.Roper.

Court of Appeals of Kentucky.

Decided May 17, 1932.

1. Indemnity. — Notwithstanding master and servant are jointly liable to third party for servant's negligence, master, where free from fault, may recover over against servant.

2. Insurance. — Generally, where third party's tort causes loss within policy, insurer, upon paying loss, becomes subrogated to insured's rights against wrongdoer.

3. Insurance. — Where employer paid employee for injuries sustained through servant's negligence with servant's money, servant was "necessary party" to employer's action against compensation insurer (Civil Code of Practice, sec. 28).

Servant was "necessary party," since, if the insurance company should be required to pay the employer, then by the terms of the contract and by operation of law it would be entitled to recovery over against servant, and servant could not be required to pay the judgment again, and, by the terms of an assignment given him by the employer, servant was entitled to the benefit of any recovery from the insurer. Moreover, the employer was not entitled to the indemnity sought, since he had not paid the judgment.

Appeal from Christian Circuit Court.

BREATHITT & BREATHITT for appellant.

WHITE & CLARK for appellee.

OPINION OF THE COURT BY JUDGE WILLIS.

Reversing.

E.N. Roper sued the AEtna Life Insurance Company upon a "standard workmen's compensation and employers' liability policy" to recover indemnity for an alleged loss.The terms of the policy were set forth, and it was alleged that C.W. Allen had asserted a damage claim against Roper and Spicer, which had resulted in a judgment in favor of Allen.It further alleged that Roper had satisfied the judgment, and that the insurance company had refused to provide indemnity as agreed.The insurance company relied upon a provision in the application for the policy which limited the protection to carpentry work of a certain description, and to the construction of private residences for one or two families, and to dwellings of wood construction not exceeding three stories in height.It was alleged that Allen had been injured while engaged in brick work that was not included within the protection of the policy.Roper then amended his pleading seeking a reformation of the policy so as to cover the case.The circuit court reformed the policy and awarded judgment in favor of Roper.The insurance company has entered a motion for an appeal, insisting that the facts did not authorize reformation of the policy, and that the insurer, in any event, could not be held liable for more than one-half of the joint judgment against Roper and the other man.Whilst the evidence was in conflict, we think it was sufficient to justify the reformation of the contract, and the finding of the chancellor on that issue will not be disturbed.U.S. Fidelity & Guaranty Co. v. Breslin, 243 Ky. 734, 49 S.W.(2d) —, decided April 19, 1932.But a more serious question is presented.The claim of Allen against Roper and Spicer was predicated upon an alleged negligent act of Spicer which resulted in the injury to Allen.Roper had not committed any negligent act, but became liable under the law...