Conqueror Zinc & Lead Company, Plaintiff, And Appellant v. Aetna Life Insurance Company v. And

• Decision Date: 03 January 1911
• Citation: 133 S.W. 156,152 Mo.App. 332
• Parties: CONQUEROR ZINC & LEAD COMPANY, Plaintiff, and Appellant, v. AETNA LIFE INSURANCE COMPANY, Defendant and Appellant
• Court: Missouri Court of Appeals

133 S.W. 156

152 Mo.App. 332

CONQUEROR ZINC & LEAD COMPANY, Plaintiff, and Appellant, v. AETNA LIFE INSURANCE COMPANY, Defendant and Appellant

Court of Appeals of Missouri, Springfield

January 3, 1911

Appeal from Jasper Circuit Court.--Hon. Henry L. Bright, Judge.

AFFIRMED.

Judgment affirmed.

Spencer Grayston & Spencer for defendant and appellant.

(1) The defendant is not liable for interest from date of rendition of judgment in circuit court, but only from date of payment of the judgment by plaintiff, and the trial court properly so ruled. Munro v. Casualty Co., 96 N.Y.S. 705; National Mills v. Marine Co., 28 R. I. 126, 66 Atlantic, 58; Davison v. Casualty Co., 197 Mass 167, 83 N.E. 407; Henderson v. Casualty Co., 29 Pa Sup. Ct., 398; Maryland Casualty Co. v. Omaha Co., 157 F. 514; Puget Sound Imp. Co. v. Marine Co., 52 Wash. 124, 100 P. 190; Stephens v. Casualty Co., 135 Mich. 189, 97 N.W. 686. (2) Defendant is not liable to plaintiff until actual payment of the judgment in the original case. Allen v. Ins. Co., 145 F. 881, 137 F. 136; Connolly v. Bolster, 187 Mass. 266, 72 N.E. 981; Insurance Co. v. Moses, 63 N.J.Eq. 260, 49 A. 720, 92 Am. St. Rep. 663; Frye v. Bath, etc., Co., 54 A. 395, 59 L.R.A. 444, 97 Me. 241; Cushman v. Fuel Co., 122 Iowa 656, 98 N.W. 509; Finlay v. Co., 83 S.W. 2, 113 Tenn. 592; O'Connell v. Railroad, 187 Mass. 272, 72 N.E. 979; Burton v. Larkin, 36 Kan. 247, 13 P. 398. (3) The defendant is not liable for the court costs in the case of Phelps v. Zinc & Lead Co., over and above the $ 5000 maximum liability imposed by the contract of indemnity, and paid by it. Munroe v. Casulty Co., 96 N.Y.S. 705, 78 Misc. 705; National Mills v. Marine Co., 28 R. I. 126, 66 A. 58.

Perkins & Blair for plaintiff and appellant.

(1) Under such a provision in the insurance policy, as appears in the policy in this case, where the insurance company takes charge of the defense, it must pay the costs of that suit. On this question we cite the following cases: Paper Co. v. Fidelity & Casualty Co., 43 A. 503; Packing Co. v. Casualty Co., 132 F. 623; Casualty Co. v. Cumberland Co., 152 F. 961, 12 L.R.A. 478; Stevens v. Casualty Co., 135 Mich. 189, 97 N.W. 686; Anoka Lumber Co. v. Fidelity & Casualty Co., 30 L.R.A. 689; Rochester Mining Co. v. Casualty Co., 128 S.W. 204; Insurance Co. v. Cotton Mills, 85 S.W. 1090; Globe Co. v. Casualty Co., 81 P. 826. (2) We are aware that some of the courts hold that policies similar to the one under consideration are contracts of indemnity against damages sustained and not against liability. The courts of Massachusetts and Rhode Island of which the cases of Davidson v. Casualty Co., 83 N.E. 407, decided by the Massachusetts court, and National & Providence Worsted Mills v. Insurance Co., 28 Rhode Island 126, 66 A. 58, are types, together with some other cases in those two states, have so held. On the other hand the courts of New Hampshire, Minnesota, Wisconsin, Arkansas, Oregon and some of the Federal courts have held such policies to be contracts of indemnity against liability. Sanders v. Insurance Co., 57 A. 655; Anoka Lumber Co. v. Ins. Co., 63 Minn. 286, 65 N.W. 353, 30 L.R.A. 389; Hoven v. Ins. Co., 93 Wis. 201, 67 N.W. 46, 32 L.R.A. 388; Fritchie v. Company, 197 Pa. 401, 47 A. 351; American Ins. Co. v. Fordyce, 62 Ark. 562, 36 S.W. 1051; Fidelity & Casualty Co. v. Fordyce, 64 Ark. 174, 41 S.W. 420; Fenton v. Co., 36 Oregon, 283, 56 P. 1096, 48 L.R.A. 770.

COX, J.

OPINION

COX, J.--This is an action upon an indemnity insurance policy issued by the defendant to plaintiff to indemnify it against damages which it might sustain by reason of injury to its employees. Mack S. Phelps was injured while in the employ of plaintiff, and on October 24, 1905, recovered judgment in the circuit court of Jasper county for $ 7500, and costs by reason of said injury. This judgment was affirmed by the Supreme Court February 25, 1909. On April 26, 1909, the plaintiff paid the Phelps judgment, and, at that time, paid the face of the judgment--$ 7500--and the further sum of $ 1575 interest thereon from date of its rendition in the circuit court to the date of payment, and $ 178.05 costs, then made demand upon defendant for reimbursement. On July 9, 1909, the defendant paid the plaintiff $ 5061.65, being the maximum liability, as it claimed, under its policy of insurance and interest thereon from the date that plaintiff paid the judgment against it. July 22, 1909, the plaintiff filed this suit, seeking thereby to recover the interest on the judgment paid by it and the costs of the suit. Trial by the court upon an agreed statement of facts, and the court rendered judgment in favor of plaintiff for the costs, $ 186.65, but refused to allow the plaintiff for interest paid upon the judgment prior to the date of its affirmance by the Supreme Court. Both parties have appealed from this judgment.

The questions to be decided here are, First; whether the defendant insurance company was, under its policy, liable for interest upon the Phelps judgment from the date of its rendition in the circuit court, or whether its liability for interest began on the date of the affirmance of that judgment by the Supreme Court. Second; whether or not the defendant is liable for the payment of the costs in the Phelps suit.

The policy issued by defendant to plaintiff in this case limited its liability for injuries to one person to the sum of five thousand dollars. It will thus be seen that the recovery against plaintiff by the party injured was greater than the defendant's liability under its policy. The provisions of the policy necessary to notice here are as follows:

The company "does hereby agree to indemnify the Conqueror Zinc & Lead Company of Joplin, the assured, for the period of twelve months, beginning on the 17th day of January, 1904, . . . subject to the following special and general agreements which are to be construed as co-ordinate, as conditions:

"Against loss from common law or statutory liability for damages on account of bodily injuries, fatal or non-fatal, accidentally suffered within the period of this policy by an employee or employees of the assured," etc.

SPECIAL AGREEMENTS.

"A. The company's liability for an accident resulting in injuries to one person is limited to five thousand dollars."

GENERAL AGREEMENTS.

"1. The assured upon the occurrence of an accident shall give immediate written notice thereof, with the fullest information obtainable at the time, to the home office of the company at Hartford, Conn., or to its duly authorized local agent. He shall give like notice with full particulars of any claim that may be made on account of such accident, and shall at all times render to the company all co-operation and assistance in his power.

"2. If thereafter any suit is brought against the assured to enforce a claim for damages on account of an accident covered by this policy, the assured shall immediately forward to the company every summons or other process as soon as the same shall have been served on him, and the company will at its own cost, defend against such proceeding in the name and on behalf of the assured, or settle the same, unless it shall elect to pay to the assured the indemnity provided for in clause A of special agreements as limited therein.

"3. The assured shall not settle any claim except at his or its own cost, nor incur any expense, nor interfere in any negotiations for settlement or in any legal proceeding, without the consent of the company previously given in writing; but he may provide at the time of the accident such immediate surgical relief as is imperative. The assured, when requested by the company, shall aid in securing information, evidence, and the attendance of witnesses and in effecting settlements and in prosecuting appeals.

"7. 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 within sixty days from the date of such judgment and after trial of the issue.

The question as to when defendant became liable for interest depends upon when it became liable to pay the plaintiff. The judgment, having been more than the maximum liability provided for by the policy, the defendant would not be responsible for interest, even though interest might have been paid by the plaintiff, until defendants liability to plaintiff became fixed. The contention of defendant is that its liability did not become fixed until the judgment of the circuit court was affirmed by the Supreme Court; while the plaintiff contends that it became liable when the judgment was rendered by the circuit court. We must determine this question by the terms of the policy of insurance which is the contract between the parties.

There is a distinction between contracts of indemnity against loss and contracts of indemnity against liability. In the latter case the obligation of the insurance company becomes fixed when liability attaches to the insured. In the former case the insurance company does not become liable until loss has been suffered, and that means when the damages have been paid by the insured. The language of the policy in question in this case is "The company does hereby agree to indemnify against loss from common law or statutory liability," etc.

It is further provided in the policy, clause number seven, General Agreements, "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 within sixty days from the date of such judgment and after trial of the...