Attleboro Mfg. Co. v. Frankfort Marine Accident & Plate Glass Ins. Co.

• Decision Date: 01 July 1909
• Docket Number: 367
• Citation: 171 F. 495
• Parties: ATTLEBORO MFG. CO. v. FRANKFORT MARINE ACCIDENT & PLATE GLASS INS. CO.
• Court: U.S. District Court — District of Massachusetts

171 F. 495

ATTLEBORO MFG. CO. v. FRANKFORT MARINE ACCIDENT & PLATE GLASS INS. CO.

No. 367

United States Circuit Court, D. Massachusetts.

July 1, 1909

Fred S Hall, Albert P. Worthen, Sherman L. Whipple, and Whipple Sears & Ogden, for plaintiff.

Matthews Thompson & Spring, for defendant.

LOWELL Circuit Judge.

This is an action at law removed into this court from the superior court of Massachusetts. The amended declaration is in tort, and alleges a policy of liability insurance for $5,000 issued by the defendant, hereinafter called the 'Insurance Company,' to the plaintiff, hereinafter called the 'Manufacturing Company.' The material parts of the policy are as follows: The Insurance Company agrees to indemnify the Manufacturing Company 'against loss arising from legal liability for damages on account of bodily injury or death suffered by any employe or employes of the assured resulting from any and every accident of whatsoever nature or cause happening in, upon, or about the premises of the assured as described herein and in the application herefor; but the liability of the company in respect to any one employe suffering injury or death shall in no case exceed the sum of five thousand dollars ($5,000), nor shall the total liability of the company in respect to any one accident resulting in injury to, or the death of, several employes in any event exceed the sum of ten thousand dollars ($10,000). ' 'That upon the occurrence of an accident, whether any claim be made in respect thereof or not, the assured shall give immediate notice in writing of such accident to the company, addressed to the Manager for the United States at the office of the company in New York, N.Y., or to the duly authorized representative of the company for the locality in which this policy is issued. If, thereafter, the assured shall receive notice of any claim growing out of an accident, duly reported to the company, as before provided, or of any legal proceedings to enforce such a claim, he shall give immediate notice thereof to the company in like manner. That if any legal proceedings are taken to enforce a claim, against the assured, covered by this policy, the company shall, at its own cost, undertake the defense of such legal proceedings in the name and on behalf of the assured and shall have the entire control of such defense. But, if the company shall offer to pay to the assured the full amount for which the company is liable in respect to the claim sought to be enforced, it shall not be bound to defend any legal proceedings nor be liable for any costs or expenses which the assured may incur in defending the same. The assured at all times shall under the direction of the company render all reasonable and necessary assistance to enable the company to effect settlements or to properly conduct a defense or to prosecute an appeal. That the company may undertake at its own cost the settlement of any claim, duly reported to it as before provided, and the assured shall not, except at his own cost, settle any claim nor incur any expense without the consent of the company thereto previously given in writing; provided, however, that such immediate medical and surgical relief to the injured may be furnished as may be imperative at the time of the accident and reasonable expenses thus incurred shall be deemed a part of the liability of the company. ' The declaration goes on to allege that one Hodde 'while in the employ of the plaintiff did suffer bodily injury resulting from an accident in, upon, or about the said premises of plaintiff; that thereafter claim was made against plaintiff on behalf of said Hodde for damages growing out of said accident'; that Hodde brought suit against the plaintiff to enforce the claim, 'and that plaintiff gave written notice to defendant of said accident, claim, and suit, respectively, immediately upon the happening, making, and commencement of the same respectively.

Upon the commencement of said suit, defendant undertook the defense thereof and assumed and took unto itself the entire and exclusive control of the defense thereof throughout the pendency thereof. ' And plaintiff states that it was the duty of defendant in defending said suit to conduct itself with a reasonable degree of care, skill, and diligence commensurate with the duties and responsibility assumed by it, as aforesaid, but that defendant unmindful of its duty in the premises so carelessly, negligently, and unskillfully conducted and demeaned itself in the premises that the plaintiff in said suit recovered final judgment against this plaintiff in the sum of $17,343.81, which judgment this plaintiff has been compelled, on writ of execution issued against plaintiff by said superior court at the instance of said Hodde, to satisfy and pay in full, principal, interest and costs; that the aforesaid negligence and misconduct of defendant consisted, in this: that defendant, although given by plaintiff timely and ample notice of said accident, claim, and suit, negligently failed to make any timely, proper, or intelligent investigation touching the facts and circumstances under which said bodily injuries were sustained by said William Hodde, Jr., whereby material evidence favorable to this plaintiff which could and should have been produced at the trial of said suit was not produced or offered thereat on this plaintiff's behalf; that no intelligent, adequate, or timely preparation was made by defendant in this suit for the trial of said suit of said William Hodde, Jr.; that competent and legal evidence material to the issue in said suit, and tending to exculpate this plaintiff of liability therein, and which was known, available, and accessible to defendant herein, and which could and should have been produced on this plaintiff's behalf on the trial of said suit, was not produced or offered by defendant; that it was charged by said Hodde in said suit that his said injuries had been caused by the negligence of this plaintiff, as it was alleged in furnishing said Hodde with a defective and unsuitable pitcher for carrying certain acid, which claim that said pitcher was defective and unsuitable by the plaintiff so that the actual condition of said picher became and was one of the vital issues on the trial of said suit; that said pitcher, if it had been offered in evidence on the trial of said action, would have tended strongly to rebut and negative said charge of negligence of said Hodde, and would on said trial have seriously impaired the weight and credibility of the evidence offered on his behalf; that this plaintiff before the trial of said suit, at defendant's request, delivered into defendant's custody and care the said pitcher, but the defendant, instead of taking care of the same, carelessly and negligently permitted said pitcher to become lost or destroyed, so that it was not and could not be used or offered in evidence in this plaintiff's behalf on the trial of said suit. And plaintiff states that it was by reason of the aforesaid negligence, carelessness, and unskillfulness of defendant in and about the premises that...