Berry v. Massachusetts Bonding & Insurance Company
| Decision Date | 05 April 1920 |
| Citation | 221 S.W. 748,203 Mo.App. 459 |
| Parties | G. D. BERRY, Appellant, v. MASSACHUSETTS BONDING & INSURANCE COMPANY, Respondents |
| Court | Kansas Court of Appeals |
Appeal from Buchanan Circuit Court.--Hon. Thos. B. Allen, Judge.
AFFIRMED.
Judgment affirmed.
O. E Shultz for appellant.
William E. Stringfiellow and Harding Deatherage, Murphy & Stinson for respondents.
This is an unusual suit. It is against an Employer's Liability Insurance Company to compel it to reimburse plaintiff for certain sums which he claims defendant should pay by way of indemnity or liability insurance, though it is freely admitted plaintiff has no contract of insurance with defendant and never did have. The trial court found for defendant and plaintiff has appealed. Finding of fact together with conclusions of law, were filed, and from the former, together with that is concededly shown in the record we collate the following:
On and prior to February 21, 1913, T. J. Berry owned a foundry in St. Joseph, the business of which he conducted under the trade name of "Berry Iron & Steel Company," and the plaintiff herein, G. D. Berry, was his general manager. On that date, the defendant issued to T. J. Berry a policy of Employer's Liability Insurance to run for one year, expiring on February 21, 1914. In said policy the assured was described as "an individual" named "Thomas J. Berry, doing business as Berry Iron & Steel Company." Therein defendant agreed to indemnify said T. J. Berry against loss imposed by law upon him for damages on account of bodily injuries suffered by any employee of his by reason of his business. The policy provided that upon the occurrence of an accident to any employee of assured he would give immediate written notice thereof to defendant and would give notice in the event a claim was made; and if any suit was brought against assured to enforce a claim for damages on account of an accident covered by the policy, assured should immediately forward the summons to defendant, whereupon the company would, at its own cost, subject to the limitations in the policy, defend or, at its option, settle such suit in the name and in behalf of assured. The policy also provided that assured should not voluntarily assume any liability nor without the written consent of the Company previously given incur any expense or settle any claim except at his own cost. It was also provided therein that no action should lie against the Company to recover for any loss or expense under the policy unless it should be brought by the assured for loss or expense incurred and paid in money by assured after trial of the issue. It was furthermore provided therein that notice to or knowledge by any agent or other person should not be held to waive any of the terms, conditions or warranties in the policy. It also provided that the premium should be based on the entire compensation paid the employees (with certain exceptions), during the period of the policy, and called for the initial payment of an estimated premium of $ 209, and if an additional amount became due as shown by the entire compensation paid, the assured was to pay it when determined; and the Company had the right to examine the books to determine the amount of premium due, upon request, at any time within one year after the policy's expiration.
The policy was delivered to assured's general manager, G. D. Berry, and remained in his possession at least until after June 1, 1914, and presumably until the present suit was brought which was on December 9, 1916.
The home office of the defendant was in Boston, Massachusetts. L. O. Weakley was its soliciting agent at St. Joseph, and he solicited and obtained the application for the policy to T. J. Berry. He had no power to and never did write policies. Applications therefor were sent by Weakley to defendant's branch office in Kansas City, Missouri, where B. L. Guthrie was head of the liability department and S. A. Shockey was at the head of the claim department. All policies were written and issued at this branch office.
D. A. Murphy, an attorney of Kansas City, was defendant's General Attorney in Western Missouri and elsewhere and had general supervisory powers over claims. An attorney at St. Joseph was defendant's local attorney there but he had charge only of those cases that were specially referred to him.
From time to time after the issuance of the policy above mentioned, reports of accidents were sent to the defendant. They were made on blanks supplied by defendant at delivery of the policy, and whenever a report of an accident was sent in, it was signed "Berry Iron & Steel Company."
On July 13, 1913, the assured, T. J. Berry, died, but a few weeks before his death he conveyed the foundry business to C. R. Berry. Neither the Company nor its branch office at Kansas City, including Guthrie, Shockey and Murphy, had any knowledge of T. J. Berry's death at the time or thereafter until as hereinafter shown, sometime in 1914. Weakley and the local attorney knew it when it occurred, being residents of St. Joseph. As to the fact that T. J. Berry had conveyed the business to G. R. Berry, no one connected in any way with the company had any notice of that until the latter part of March, 1914, of which mention will be hereinafter made.
After the death of T. J. Berry, the foundry business continued on as before without interruption and under the name of the "Berry Iron & Steel Company," and there was nothing in the office or files of Shockey, the claim adjuster, or Murphy the general attorney, to show who constituted "Berry Iron & Steel Company;" while the policy itself and the information based thereon in the files of Guthrie, head of the branch office, showed that Thomas J. Berry an individual composed it.
After T. J. Berry's death as aforesaid on July 13, 1913, accidents occurred to various employees in said business, amounting to eight in number, reports of which were made out on blanks, as before, and signed "Berry Iron & Steel Company," thus not indicating either a change of ownership nor the death of assured, T. J. Berry. These reports were mailed to Weakley in St. Joseph and by him forwarded to the Kansas City Branch Office. The trial court found that in receiving and forwarding these reports Weakley "acted by way of accommodation to the assured and not as authorized agent of defendant."
Among these eight employees injured at various times as above stated, was one, James Welch, injured on September 25, 1913 (after the Berry Iron & Steel Company had been conveyed to C. R. Berry and after T. J. Berry, the assured named in the policy, had died), and a report of this was one of those signed "Berry Iron & Steel Company" and sent to Weakley, who sent it to the branch office in Kansas City, which in turn sent it to the local attorney that he might investigate it. He investigated the facts of the accident but had no knowledge who was the owner of the business or who was the assured in the policy.
On December 20, 1913, said James Welch brought suit for $ 3000 against G. D. Berry as executor and administrator of the estate of T. J. Berry, deceased, and against G. D. Berry individually. The petition and summons were sent by plaintiff to Shockey, the claim agent at Kansas City, who in turn sent them to the local attorney at St. Joseph for attention. He took charge of the litigation, filed pleadings in the name of the defendants therein named, took depositions and had charge of said litigation until June 1, 1914.
On January 28, 1914, one James T. Hayes, one of the eight above mentioned, received his injury, and a report thereof, signed as before, "Berry Iron & Steel Company," was likewise sent to Shockey the claim agent, who investigated the circumstances of the accident.
On February 21, 1914 (the date of the expiration of the policy issued to T. J. Berry), a new policy was issued to C. R. Berry doing business as "Berry Iron & Steel Company," which policy was likewise to run one year from date and was similar in form to the prior policy issued to T. J. Berry. This policy was on June 1, 1914, canceled "flat," that is, from the beginning, and, at plaintiff's request, a new policy was issued to G. D. Berry, executor and administrator of T. J. Berry.
On March 10, 1914, James T. Hayes, brought suit for his injury (which had occurred on January 28, 1914, during the term of the T. J. Berry policy), against G. D. Berry, individually, and G. D. Berry as executor and administrator of the estate of T. J. Berry, and charging that his injuries were the result of the negligence of the defendants. The petition and summons in this case were, in the same way as in the other case, sent to the local attorney in St. Joseph, who assumed charge of the defense in the name of the defendants. About March 16, 1914, depositions were taken, in the course of which G. D. Berry testified that C. R. Berry was the owner of the foundry business, and that T. J. Berry had conveyed it to C. R. Berry a few weeks before the former's death.
In view, no doubt, of this testimony, James T. Hayes, on March 20, 1914, brought suit on the same cause of action as before (his injury of January 28, 1914), against C. R. Berry. The latter turned the petition and summons over to G. D. Berry, the plaintiff herein, who in turn delivered them to defendant's local attorney and he assumed charge of this last mentioned suit, filed pleadings and remained in charge of the defense thereof until on or about June 1, 1914.
About this date defendant, in writing, notified C. R. Berry, G. D Berry individually, and G. D. Berry as executor and administrator of the estate of T. J. Berry, that it would no longer assume the defense in the cases above mentioned and withdrew from the...
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