Anoka Lumber Co. v. Fid. & Cas. Co. of N.Y.

• Decision Date: 23 December 1895
• Citation: 65 N.W. 353,63 Minn. 286
• Court: Minnesota Supreme Court
• Parties: ANOKA LUMBER CO. v. FIDELITY & CASUALTY CO. OF NEW YORK (NELSON, INTERVENER, TWO CASES).

63 Minn. 286

65 N.W. 353

ANOKA LUMBER CO.

v.FIDELITY & CASUALTY CO. OF NEW YORK (NELSON, INTERVENER, TWO CASES).

Supreme Court of Minnesota.

Dec. 23, 1895.

(Syllabus by the Court.)

1. The Fidelity & Casualty Company of New York issued an employers' liability policy to the Anoka Lumber Company, containing this clause: “The assured, upon the occurrence of an accident, and upon the notice of any claim on account of an accident, shall give immediate notice in writing of such accident or claim, with the fullest information available, to the company, at its office in New York City, or to the agent, if any, who shall have countersigned this policy.” Held, that the assured need not give such notice until an accident happens and a notice of a claim is made on account thereof.

2. The above-described policy also contained several provisions relating to its liability, among others: (1) That it insured against all liability on account of fatal or nonfatal injuries suffered by an employé; (2) that the company, at its own expense, would take upon itself the settlement of any loss and the control of any legal proceedings taken against the assured to enforce a claim for injuries to the assured employés; (3) that the assured should not settle with the injured employé without the consent of the insurance company; (4) that no action should be brought against the insurance company after the period in which an action might be brought by the employé against the employer, unless at such period there was a suit pending for such purpose, in which case an action might be brought, in respect to the claim involved in such suit, against the company, by the assured, within 30 days after judgment is rendered in such suit, and not later. Held, that this policy, by the terms of the instrument itself, was not merely one of indemnity against any act of the employé, but that, in case of an accident to him whereby he had a cause of action against the assured, the company would assume and pay the liability. Held, also, that the employé, having, while so employed, sustained an injury whereby he recovered a judgment therefor against the assured employer for the sum of $2,285.02, the insurance company was liable therefor upon an action against it, without the employer having first paid the judgment.

3. An employé was personally injured while his employer held an employers' liability policy, and, before the employé commenced an action against the employer to recover damages for such personal injuries, the employer made an assignment under the insolvency law. Gen. Laws 1881, c. 148. Judgment was afterwards rendered in such action in favor of the employé against the employer for such personal injury; and, in an action upon the judgment by the assured employer against the insurance company, the employé garnished the latter company, and then intervened in the suit. Held, that the claim of the assured against the insurance company did not pass to the assignee by the assignment, and that the intervener is entitled to maintain his garnishee proceedings in the action to recover the amount of his judgment.

Appeal from district court, Hennepin county; Robert D. Russell, Judge.

Action by Albert Cobb, assignee of the Anoka Lumber Company, against the Fidelity & Casualty Company of New York. Claus E. Nelson garnished the insurance company, and intervened. Judgment for the intervener, and both plaintiff and defendant appeal. Affirmed.

J. O. P. Wheelwright, for appellant Cobb.

Keith, Evans, Thompson & Fairchild, for appellant Fidelity & Casualty Co.

A. Ueland, for respondent.

BUCK, J.

This action is brought under an employers' liability policy, issued by the Fidelity & Casualty Company of New York to the Anoka Lumber Company, insuring the company for 12 months against liability for damages, up to stated limits, on account of fatal or nonfatal injuries suffered by an employé or employés of the assured while engaged in the occupations and at the places specified. On May 25, 1893, while the policy was in force, one of the insured's employés, Claus E. Nelson, the intervener, and respondent, was injured. At that time the assured was informed and knew of the accident, but it then gave no notice to the insurance company of its occurrence. On September 13, 1893, Nelson claimed damages of the assured, on account of this accident; and the same day the assured, for the first time, gave notice to the agents of the insurance company that the accident had happened, and that Nelson claimed damages in consequence of it. Afterwards, on October 3, 1893, the assured made a formal statement of the accident and claim on blanks furnished by the appellant. At the time of receiving said statement, appellant claimed that there had not been a compliance with condition 3 of the policy, and afterwards, when notified by the lumber company that suit had been brought by Nelson, refused to defend the action, or to consider the accident as coming under said policy, on account of material prejudice, and on account of failure to report the accident promptly. On the 4th of October, 1893, the assured made an assignment, under the insolvency laws of this state, to Albert C. Cobb; and to said Cobb was delivered, with other assets of the Anoka Lumber Company, the policy here in question. In the schedule of assets filed by the Anoka Lumber Company no mention of this policy or reference to it was made. On December 20, 1893, Nelson commenced his action against the Anoka Lumber Company; and on July 5, 1894, he obtained judgment in his suit against it for $2,285. This judgment is wholly unpaid. Upon the entry of this judgment, the present action was brought against this appellant, by said Cobb, as assignee, and the Anoka Lumber Company. Nelson garnished this appellant insurance company, and thereafter intervened in this action. Upon the trial, the court directed a verdict against the defendant for the amount of the judgment obtained by said Nelson, and interest, viz. for $2,330, and also directed the jury to find said sum so found against said defendant to be payable to the intervener by defendant as garnishee of said Anoka Lumber Company. The Fidelity & Casualty Company, and Albert C. Cobb, as assignee of the Anoka Lumber Company, each prosecutes an appeal.

A provision of the policy, numbered 3, is as follows: “The assured, upon the occurrence of an accident, and upon notice of an accident, and upon notice of any claim on account of an accident, shall give immediate notice, in writing, of such accident or claim, with the fullest information available, to the company at its office, in New York City, or to other agents, if any, who shall have countersigned this policy.”

1. The Fidelity Company contends that this provision requires notice to be given whenever any accident occurs, and also that another notice must be given whenever any claim on account of an accident is made. Opposed to this contention, it is asserted that notice is not required by the terms of such provision until there has been both an accident and a claim by reason thereof. We are of the opinion that the latter construction is the correct one. Nelson never made any claim...