Dunham v. Philadelphia Casualty Co.

• Decision Date: 31 December 1913
• Citation: 179 Mo. App. 558,162 S.W. 728
• Parties: DUNHAM v. PHILADELPHIA CASUALTY CO.
• Court: Missouri Court of Appeals

162 S.W. 728

179 Mo. App. 558

DUNHAM v. PHILADELPHIA CASUALTY CO.

St. Louis Court of Appeals. Missouri.

December 31, 1913.

1. INSURANCE (§ 513)—INDEMNITY INSURANCE —POWER OF ADJUSTER.

An adjuster of an employers' liability insurance company, sent out with power to ascertain the extent of the injuries and to settle the claim, has sufficient power to authorize the insured, whose servant was injured, to continue to provide medical services.

2. INSURANCE (§ 513)—EMPLOYERS' LIABILITY INSURANCE—CONDITIONS PRECEDENT.

Where an employer's liability policy provided that no action should lie against the company for any loss or expense unless brought by the insured to reimburse him for loss or expense paid after a trial of the issues, unless the payment shall have been made with the written consent of the company, it is a condition precedent to a recovery of expenses incurred by the insured that the payment be not made until after the trial of the issues or with the written consent of the company.

3. APPEAL AND ERROR (§ 852)—REVIEW— JUDGMENTS.

On appeal from an action tried to the court, the appellate court will sustain the judgment on any theory sufficiently supported by the evidence, where there are no instructions showing that the court proceeded on a different theory.

4. INSURANCE (§ 391)—EMPLOYERS' LIABILITY INSURANCE—WAIVER.

In an action on an employer's liability insurance policy providing that the insurer should not be liable for payments made by the insured unless made after a trial of the issues, or with the written consent of the company, the insurer held to have waived that provision and rendered itself liable to reimburse the insured for payments for medical services rendered an injured employé.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

Action by J. M. Dunham against the Philadelphia Casualty Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Chas. E. Morrow, of St. Louis, for appellant. Paul V. Janis, of St. Louis, for respondent.

NORTONI, J.

This is a suit on a policy of employers' liability insurance. Plaintiff recovered, and defendant prosecutes the appeal.

The principal argument urged for a reversal of the judgment goes to the effect that the amount sued for, though paid out by plaintiff on account of an injury to one of his employés, may not be recovered in this suit on the policy for the reason the claim was not ascertained after trial of the issue before the payment was made. Though it is clear enough that the policy imposes this as a condition precedent to the right of recovery thereon, it seems the provision may be treated as waived by defendant in the instant case and the judgment supported on that ground.

It appears plaintiff is a contractor and builder and as such took out the insurance policy involved here. The insurance is of that character known as employers' liability, and the policy vouchsafes indemnity to the assured under the limitations therein prescribed, and not exceeding a specified amount against such losses as he may sustain and pay after a trial of the issue on account of injuries received by persons in his employ who are included within the terms of the contract. The policy provides that the company shall undertake, at its own cost, the defense of all suits against the insured which may be prosecuted against him on account of injuries received by his employés, and provides further that the insured shall render assistance in securing information touching such controversies and the evidence thereon, attendance of witnesses, effecting settlements, etc. But it provides, too, that the insured shall not, "without the written consent of the company, interfere in any negotiation for settlement nor in any legal proceedings, nor incur any expense other than for imperative surgical relief at the time of an accident." In the latter clause just quoted, there is obviously implied authority granted on the part of defendant company to the insured to incur expense for imperative surgical relief at the time of an accident, and this much seems to be conceded in the case. The instant suit proceeds for the recovery of $125, a surgeon's bill paid by plaintiff to a physician and surgeon for treating a carpenter who was injured while in plaintiff's employ. While erecting a building in St. Louis a carpenter, employed by plaintiff and within the terms of the policy, fell from the building to the earth below and thereby received severe and dangerous injuries. It appears both of his arms and three ribs were fractured. Furthermore, the carpenter, Buckner, was rendered unconscious by the fall and for several days thereafter was in a dangerous condition. Plaintiff called a physician and surgeon immediately to treat and care for the...