Cudahy Packing Co. v. New Amsterdam Cas. Co.
| Decision Date | 24 September 1904 |
| Docket Number | 523. |
| Citation | 132 F. 623 |
| Parties | CUDAHY PACKING CO. v. NEW AMSTERDAM CASUALTY CO. |
| Court | U.S. District Court — Southern District of Iowa |
Wright & Baldwin and J. C. Cowin, for plaintiff.
Greene Breckenridge & Kinsler, for defendant.
The evidence of both parties being in, each party has moved for a verdict. The evidence is by an agreed statement of facts, and there is no question of fact for the jury. The plaintiff is engaged in slaughtering cattle, sheep, and hogs in South Omaha, and employs many laborers. The defendant is engaged in issuing contracts of indemnity. It issued, for a stipulated premium, a policy to plaintiff to indemnify it for all damages it might be required to pay to employes arising from personal injuries received by reason of defective machinery etc., in and about the work. An employe by name of Antes received a serious injury, for which he brought suit in the United States Circuit Court for Nebraska, and he recovered judgment against the packing company for $6,500. That judgment was affirmed by the Circuit Court of Appeals for this circuit. 117 F. 118. Thereupon the packing company paid off the judgment. The packing company now seeks to recover from the guaranty company on account of the policy.
One question is, what rate of interest shall be allowed on the recovery? The rate of interest in New York and Iowa is fixed by law at 6 per cent., while in Nebraska it is 7. The evidence shows that the contract was both executed and countersigned in New York. By inference-- and that only-- the contract was delivered in Nebraska. But by special recital the policy is to be paid in New York. Therefore the New York laws will govern the rate of interest to be allowed.
The policy, among other things, provided: (1) The maximum liability in any one case is $5,000. (2) When suit is brought, notice shall be given the casualty company. (3) The casualty company shall make the defense, but in the name of the packing company. (4) The packing company shall not settle the case, excepting at its own expense. (5) The casualty company takes entire charge and is in full control of the litigation; and its counsel, and not the counsel of the packing company, shall appear in all the courts through which the case shall be taken. This kind of insurance is new, and no authorities have been presented by counsel, for the reason that the questions have not been before the courts. The judgment in favor of Antes against the packing company was rendered May 28, 1901. As...
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