Brassil v. Maryland Cas. Co.
Decision Date | 24 February 1914 |
Citation | 104 N.E. 622,210 N.Y. 235 |
Parties | BRASSIL v. MARYLAND CASUALTY CO. |
Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, First Department.
Action by Daniel S. Brassil against the Maryland Casualty Company. From a judgment on a verdict for plaintiff affirmed by the Appellate Division, First Department (147 App. Div. 815,133 N. Y. Supp. 187) by a divided court, defendant appeals. Affirmed.
In June 1899, the defendant, a casualty insurance company, issued to the plaintiff its policy of insurance whereby it agreed, in consideration of the stipulated premium, to indemnify the plaintiff ‘against loss from common-law or statutory liability for damages on account of bodily injuries' suffered by any of his employés. The limit of its liability for an accident to any one employé was fixed at $1,500. During the term of the policy, one of the plaintiff's employés, a young man named Loughlin, under the age of 21, was injured. He and his father commenced actions against the plaintiff to recover damages on account of the accident. While these actions were pending, the plaintiff received an offer from the attorneys for the Loughlins stating that they would settle the actions for $1,500. This the plaintiff communicated to the defendant, and requested and urged its permission to settle upon that basis. The defendant refused the request upon the ground that the sum named was excessive. It elected to defend the actions, as it had the right to do under the provisions of the policy, and the actions proceeded to trial; the defendant taking control of the defense thereof. They resulted in judgments against the plaintiff here aggregating over $6,000.
After all this had transpired, and the plaintiff had been thus mulcted in damages exceeding by $4,500 the amount for which he was insured, the defendant wrote to the plaintiff stating that it did not consider an appeal would be advantageous, that it would not prosecute an appeal, but ‘holds itself ready to comply with the terms of its contract with you in case you should satisfy the judgment rendered against you.’ It further signified its willingness to permit the plaintiff to substitute his own attorney to prosecute an appeal. To this letter the plaintiff replied, in substance, that inasmuch as the defendant had refused the offer to compromise the Loughlin suits for $1,500, and through its conduct had inflicted a much greater liability upon him, he would hold the defendant liable for the full amount.
Thereafter the plaintiff, through his own attorney, appealed from the main Loughlin judgment to the Appellate Division of the Supreme Court, where it was unanimously affirmed. He procured leave to appeal to this court, and here the judgment was reversed for errors committed upon the trial and a new trial was ordered. Loughlin v. Brassil, 187 N. Y. 128, 79 N. E. 854. No new trial was had, however, and the Loughlin actions were subsequently dismissed for want of prosecution.
This action was then commenced to recover from the defendant the expense to which the plaintiff had been subjected in prosecuting the appeal from the Loughlin judgment, including his attorney's fees amounting, as claimed by the plaintiff, to $2,611. He recovered a judgment of $2,211. On appeal by the defendant from that judgment to the Appellate Division there was an affirmance. The defendant has now appealed to this court.
The policy first insured the plaintiff ‘against loss from common-law or statutory liability for damages' to his employés. It then contained certain clauses called ‘special agreements,’ among which was a limitation of $1,500 for any accident to an employé. The other ‘special agreements' have no bearing upon this controversy. Attached to the policy and printed on the reverse side thereof were a number of so-called ‘conditions precedent.’ Among these conditions were the following:
‘(2) If * * * any suit is brought against the assured to enforce a claim for damages on account of an accident covered by this policy, immediate notice thereof shall be given to the company, and the company will defend against such proceeding, in the name and on behalf of the assured, or settle the same at its own cost, unless it shall elect to pay the assured the indemnity provided for.
‘(3) The assured shall not settle any claim, except at his own cost, nor incur any expense, nor interfere in any negotiation or settlement or in any legal proceeding without the consent of the company previously obtained in writing. * * *
James J. Mahoney, of New York City, for appellant.
Thomas F. Magner, of Brooklyn, for respondent.
WERNER (after stating the facts as above).
The action is novel. The question is whether an ‘insured’ under a contract of indemnity...
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