Century Realty Company v. Frankfort Marine Accident and Plate Glass Insurance Company

• Decision Date: 02 December 1913
• Citation: 161 S.W. 624,179 Mo.App. 123
• Parties: CENTURY REALTY COMPANY, Respondent, v. FRANKFORT MARINE ACCIDENT AND PLATE GLASS INSURANCE COMPANY and TRAVELERS INSURANCE COMPANY, Defendants; FRANKFORT MARINE, ACCIDENT AND PLATE GLASS INSURANCE COMPANY, Appellant
• Court: Missouri Court of Appeals

161 S.W. 624

179 Mo.App. 123

CENTURY REALTY COMPANY, Respondent, v. FRANKFORT MARINE ACCIDENT AND PLATE GLASS INSURANCE COMPANY and TRAVELERS INSURANCE COMPANY, Defendants; FRANKFORT MARINE, ACCIDENT AND PLATE GLASS INSURANCE COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

December 2, 1913

Argued and Submitted November 5, 1913.

Appeal from St. Louis City Circuit Court.--Hon. Eugene McQuillin Judge.

AFFIRMED.

STATEMENT.--On April 29, 1903, one May Travis Cooper sustained injuries from an accident in a passenger elevator located in the Century Building in the city of St. Louis, the elevator owned and operated by the Century Realty Company. She instituted action against that company to recover her damages, placing the amount at $ 25,000. The cause came on for trial and, on January 12, 1906, resulted in a verdict for her in the sum of $ 5000, judgment following on that day for that amount and costs, the judgment to bear interest at the rate of 6 per cent per annum from that date. On motion for a new trial filed by the Century Realty Company, defendant in that case respondent here, the circuit court set aside the verdict and judgment and ordered a new trial. From this May Travis Cooper appealed to the Supreme Court. That court, on December 23 1909, set aside the order of the circuit court granting a new trial and reversed the judgment with directions to the circuit court to reinstate the judgment as of date January 12, 1906, the judgment to bear interest from that date. [See Cooper v. Century Realty Co., 224 Mo. 709, 123 S.W. 848.] The mandate of the Supreme Court was thereafter filed in the circuit court, and on January 5, 1910, that court entered up judgment in favor of May Travis Cooper and against the Century Realty Company for $ 5000, as of date January 12, 1906, that amount to bear interest at 6 per cent from that date, and also for costs and charges therein expended. Execution issued on this judgment, under which property of the Century Realty Company having been levied upon and advertised for sale, the Century Realty Company, on June 25, 1910, paid in satisfaction of the judgment the sum of $ 6753.40, that amount made up of the $ 5000 damages, $ 1337.50 interest accruing from January 12, 1906, and $ 415.90 for court costs.

At the time the accident above referred to happened, the Century Realty Company held policies in two companies, both policies having first been issued in the name of the Century Building Company and others named, payable to them, "as their interests might appear," but afterwards and before the happening of the accident, the Century Realty Company was substituted as the assured in place of the Century Building Company. Each of these policies covered the freight and passenger elevators situated in the building then owned by the Century Building Company, later by the Century Realty Company. For convenience and brevity, in speaking of the insured, we will designate it either as the Century Company, or as the Realty Company, although in the policies the former name, Century Building Company, is in fact used. It is conceded that the accident happened to May Travis Cooper while a passenger in one of the passenger elevators.

The policy issued by the Frankfort Marine Accident & Plate Glass Insurance Company, of Frankforton-the-Main, Germany, hereinafter called the Frankfort Company, being the appellant herein, is designated "General Liability Policy." By it that company, in consideration of a premium stated, agreed to indemnify the Century Company "against loss arising from legal liability for damages on account of bodily injury or death suffered by any person or persons whomsoever resulting from any and every accident of whatsoever nature of cause happening in, upon, or about the premises of the assured, or happening in, upon or about any of the seven passenger elevator or freight elevators, . . . or the machinery and appliances connected therewith and together comprising the elevator service, . . . but the liability of the company in respect to any one person suffering injury or death shall in no case exceed the sum of $ 5000, nor shall the total liability of the company in respect to any one accident resulting in injury to or the death of several persons in any event exceed the sum of $ 10,000." It is expressly warranted and agreed (1) . . . (2) 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 the accident to the company and shall likewise give immediate notice of any legal proceedings instituted to enforce such claim.

"(3). 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.

"(4) 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 (sic) 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." (Italics ours.)

The policy of the Frankfort Company was dated June 7, 1902, was for a term of one year but was extended June 18, 1902, for a term of twelve months, the accident occurring within this second period.

The policy issued by the Travelers Insurance Company, of Hartford, Conn., hereinafter referred as the Travelers, or Travelers Insurance Company, in consideration of premiums stated, agreed to indemnify the Century Company for a period of three years, beginning on the 11th of June, 1902, "against loss from common law or statute liability for damages on account of bodily injuries, fatal or nonfatal, accidentally suffered within the period of this policy, by any person or persons, while in the car of the elevator mentioned in said application, or in the elevator well or hoistway of same, or while entering upon or alighting from the car," and it is set out in the policy that, "in consideration of the rate of premium at which this policy is issued, it is hereby understood and agreed that other like and prior insurance shall be maintained by the assured in some other company, with like limits of liability, under said prior insurance, of $ 5,000 in respect to any one person and $ 10,000 in respect to any one accident causing injury to more than one person; and that this company shall only be held liable under this policy (subject to the limits of insurance therein made) for any loss sustained by the assured in excess of the amount covered by said prior insurance."

Among the conditions written in the policy and here involved, are, first, "the company's liability for an accident resulting to, or in the death of, one person is limited to $ 5000."

"14th. No action shall lie against the company as respects any loss under this policy unless it shall be brought by the assured himself to reimburse him for loss actually sustained and paid by him in satisfaction of a judgment after trial of the issue. No such action shall lie unless brought within the period within which a claimant might sue the assured for damages unless at the expiration of such period, there is such an action pending against assured, in which case an action may be brought against the company by the assured within thirty days after final judgment has been rendered and satisfied as above," etc. (Italics ours.)

Holding these two policies when the accident happened, the Century Company forthwith notified the two companies of it and likewise at once notified them of the bringing of the action against it by May Travis Cooper. Thereupon the Frankfort Company took charge of the action through its own attorneys and followed it through the circuit court and the Supreme Court and again in the circuit court to its termination, as hereinbefore noted. The Travelers took no active hand whatever in the management of the case, although its local attorneys kept watch of the case in its progress through the courts, but in no manner whatever interfering or controlling its management. The Frankfort, it was admitted, had paid all attorney's fees, printing of briefs, travelling and all other expenses incident to the defense in the circuit and Supreme Courts, barring interest, if we are to class that as an "expense."

After the reversal of the judgment in the Cooper case by the Supreme Court and the payment of that judgment in the amount before stated, the Century Realty Company demanded payment of the amount which it had paid by way of debt, interests and costs from the two companies. The Frankfort Company, on August 6, 1910, in and through a written notice, offered and tendered to the Century Realty Company $ 5035.08, as in full settlement and satisfaction of any and all claims of whatsoever nature, which the Century Realty Company had or might thereafter have against it under the policy referred to, that is, $ 5000 on the debt...