O'Connell v. New York, N.H. & H.R.r.

• Decision Date: 06 January 1905
• Citation: 187 Mass. 272,72 N.E. 979
• Parties: O'CONNELL et al. v. NEW YORK, N.H. & H. R. R. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

187 Mass. 272

72 N.E. 979

O'CONNELL et al. v. NEW YORK, N.H. & H. R. R. et al.

Supreme Judicial Court of Massachusetts, Suffolk.

January 6, 1905

COUNSEL

Geo R. Swasey, Chas. H. Donahoe, and Francis R. Mullin, for complainants.

Robert W. Nason, for defendant Union Casualty & Surety Co.

F. A Farnham, for defendant N. Y., N.H. & H. R. R.

OPINION

LORING J.

This is an appeal from a final decree in equity in favor of the plaintiff. The facts which gave rise to the filing of the bill were as follows: The plaintiff O'Connell was a contractor, and at the time in question was engaged in building a section of Stony Brook conduit for the city of Boston, near the tracks of the defendant railroad company. In carrying on this work it became necessary to set up one of the guys of a derrick across the tracks of the defendant railroad company, and, on application being made to it, a license so to do was given to the plaintiff by it. The guy was set up too low, and in consequence two of the defendant railroad company's brakemen were injured while riding on the top of freight cars. These accidents occurred on December 17, 1897. On the 28th day of that month the plaintiff gave the company a bond, with two sureties, in the penal sum of $1,000, conditioned to save it harmless from all loss by reason of said injuries, in order to prevent the revocation of the license to maintain the guy. On the 18th day of the following January one of the brakemen (O'Leary) took a writ against the railroad company, with an ad damnum of $6,000, out of the United States Circuit Court. Some two months later O'Connell discovered that the accident policy which had been issued to him by the defendant surety company covered 'bodily injuries' 'accidentally suffered by any person or persons not employed' by him caused by his negligence, as well as those 'suffered by any employee or employees.' He thereupon notified the surety company of the action brought by O'Leary against the railroad company, and on April 9th, in spite of the notice not having been given within the time stipulated for in the policy, the surety company wrote to O'Connell's attorney a letter, in which, after referring to the action of O'Leary against the railroad company, 'for which it is probable that Mr. O' Connell is responsible,' they state: 'Mr O'Connell has since found that he held a liability policy with this Company under which we will take charge of this particular case when we succeed in getting full information as to the status of the case at the present time.' The information was furnished, and an attorney retained by the surety company entered an appearance for the railroad company, and tried the action for it in the following June. The trial resulted in a verdict for the plaintiff in the sum of $3,625. Exceptions were taken by the defendant, which the attorney retained by the surety company desired to take to the Circuit Court of Appeals. To enable him to do this, he asked the railroad company to give a bond. This the railroad company refused to do, unless a bond was given to it conditioned for the payment of any judgment and costs and expenses incurred by it in the action. The attorney retained by the surety company then asked O'Connell or his attorney to give such a bond to the railroad company, and such a bond in the penal sum of $5,000 was given by O'Connell and two sureties on October 24, 1898. The plaintiff and his attorney testified that the attorney retained by the surety company and its general manager and the claims attorney promised O'Connell that, if he would give the bond to the railroad company, the surety company would pay the judgment recovered by O'Leary against the railroad company if judgment was ultimately rendered in his favor. The attorney who tried the action brought by O'Leary against the railroad company under the surety company's retainer testified that when O'Connell's attorney asked him if the surety company would stand behind O'Connell on the bond, if he gave the bond asked for, he answered that he did not 'know about that,' and that O'Connell, his attorney, and the witness then went to the office of the surety company, where they found the general manager and claims attorney; that the plaintiff's attorney then asked them the question previously asked by him of the witness; and that the general manager or the claims attorney answered, 'in some form of words,' that they 'thought that, as the company had undertaken the defense, there was no doubt that the company would pay.' This testimony was corroborated by the claims attorney. The plaintiff also introduced evidence that the railroad company agreed to look to the surety company for the performance of the condition of the bond given by him to the railroad company, and not to the principal and sureties who signed it. This was denied by the railroad company. The bond was given, the exceptions were argued and overruled, and execution issued against the railroad company in...