B. Roth Tool Co. v. New Amsterdam Cas. Co.
| Decision Date | 31 March 1908 |
| Docket Number | 2,633. |
| Citation | 161 F. 709 |
| Parties | B. ROTH TOOL CO. v. NEW AMSTERDAM CASUALTY CO. [1] |
| Court | U.S. Court of Appeals — Eighth Circuit |
Ford W Thompson (W. B. Thompson and Edward L. Gottschalk, on the brief), for plaintiff in error.
Lon O Hocker (C. P. Ellerbe, L. R. Brokaw, and Jones, Jones & Davis, on the brief), for defendant in error.
Before HOOK and ADAMS, Circuit Judges, and CARLAND, District Judge.
The casualty company issued its policy indemnifying the tool company against loss from common-law and statutory liability for damages on account of bodily injuries sustained by any of its employes while on duty. James M. Cameron, an employe sued the tool company for damages sustained by him while in its employment and recovered a judgment for $3,500, which the tool company was required to pay and did pay. Afterwards the tool company brought the present action against the casualty company on its policy to recover the amount so paid to Cameron. The casualty company filed its answer, alleging that the assured had failed to keep and observe a promissory warranty which formed a part of the contract of indemnity, in this: that it permitted to be used on its premises certain explosives in violation of a stipulation contained in the policy that no explosives should be used on the premises. In its answer it pleaded the following facts as a breach of the warranty: That the assured, while carrying on a machine and blacksmith shop, permitted one Howe to make use of its tools and furnaces for the purpose of carrying on dangerous and hazardous investigations and experiments, and particularly to place in one of plaintiff's furnaces a certain iron tube filled with substances which were highly explosive and dangerous to life and limb when brought into contact with heat; that an explosion followed which caused the injury to Cameron. Defendant for further answer alleged that in the suit which Cameron brought against the assured the question whether Cameron was injured by the use of explosives on the premises was adjudicated and conclusively settled against the assured. The contract of indemnity sued on required the assured upon the occasion of any accident to give immediate notice thereof to the casualty company, and, in case of suit against the assured, the latter was required to immediately deliver to the casualty company a copy of the petition and summons, and the latter agreed to make the defense to the suit at its own cost or settle the same, provided it did not elect to pay the limit of liability fixed in the contract.
Pursuant to the obligation of the contract, the assured gave the required notice, and delivered a copy of the petition and summons to the casualty company. The casualty company, disclaiming any liability for the damages occasioned to Cameron, refused to assume the defense of that suit.
To sustain the issue of res adjudicata joined in this suit the casualty company offered in evidence the amended petition, the answer, the instructions of the court to the jury, and the judgment rendered in that suit. From this testimony offered and received it appears that Cameron charged in his petition as the act of negligence which caused his injury that the tool company carelessly caused and permitted to be constructed a large metal tube 'and caused, and permitted the same to be filled with various metals and materials of an explosive and dangerous nature,' and, when so filled, to be placed in a heating furnace in the machine shop of the defendant, and that as a result thereof the tube and contents exploded and injured him; that the tool company joined issue on that allegation of negligence; that the trial court at the trial instructed the jury as follows:
'If they find and believe from the evidence that on or about April 7, 1903, the defendant company permitted and invited one Howe to enter upon its premises where the plaintiff (Cameron) was working as a blacksmith in the service of the defendant, and to place within its furnace thereon a certain tube closed and sealed and filled with materials of an explosive nature and that said furnace at the time contained a hot fire, and if the jury further believe that the defendant knew or by the exercise of ordinary care could and should have known that said tube so closed and sealed, and so filled was likely in the natural course of events to explode when so placed in said furnace containing a hot fire, and if the jury further believe that said Howe upon such permission and invitation did place said tube so closed and sealed and so filled in said furnace then containing a hot fire, and that in consequence thereof said tube did explode, and that plaintiff as a direct and immediate consequence of said explosion and without any fault or negligence on his part contributing thereto was injured-- then the jury will find for the plaintiff,'
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