Edinger & Co. v. Southwestern Sur. Ins. Co.
| Decision Date | 03 December 1918 |
| Citation | 206 S.W. 465,182 Ky. 340 |
| Parties | EDINGER & CO. v. SOUTHWESTERN SURETY INS. CO. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Jefferson County, Common Pleas Branch Second Division.
Action by Edinger & Co. against the Southwestern Surety Insurance Company. Judgment on directed verdict for defendant, and plaintiff appeals. Affirmed.
O'Neal & O'Neal, of Louisville, for appellant.
Helm & Helm, of Louisville, for appellee.
Edinger & Co. had a policy of insurance in the Southwestern Surety Insurance Company, indemnifying it against loss and expense arising from claims upon it for damages on account of bodily injury accidentally suffered by any person during the period of the policy that were caused by horses or vehicles in the service of Edinger & Co. The policy, however, contained a clause exempting it from liability for injury and resulting damage caused by vicious horses that might be used by Edinger & Co.
While this policy was in force G. T. Humphrey, while shoeing a mule belonging to Edinger & Co., was knocked down and injured by the mule. To recover damages for the injury so sustained Humphrey brought a suit against Edinger & Co., and thereupon Edinger & Co. gave notice to the insurance company to take charge of and defend the suit, but it refused to have anything to do with it upon the ground that the mule that injured Humphrey was a vicious mule, and therefore it was, by the terms of its policy, exempt from all liability on account of the injury inflicted by the mule. Upon the refusal of the insurance company to take charge of or defend the suit Edinger & Co. employed counsel and defended it; the result being that there was a verdict and judgment in favor of Humphrey for $500.
Thereafter Edinger & Co. brought this suit against the insurance company to recover the amount of the judgment and costs, and also the attorney's fee Edinger & Co. were required to pay attorneys for representing them in the Humphrey suit.
In the trial of the Humphrey suit the trial judge instructed the jury that they could not find for Humphrey "unless they believed that the mule that injured him was a wild and vicious mule and that he did not know this fact, but Edinger & Co. did." They were further instructed "that, if they believed the mule was not wild and vicious, they should find for Edinger & Co."
In the suit against it by Edinger & Co. the insurance company pleaded that the judgment in the case of Humphrey against Edinger & Co. was a conclusive adjudication of the fact that the mule that injured Humphrey was a wild and vicious animal and therefore by the very terms of its policy contract it was excused from liability to Edinger & Co. The trial court also took this view of the matter, and peremptorily instructed the jury to find a verdict in favor of the insurance company.
It will thus be seen that the principal, and indeed the only, question in the case we have is: Was the judgment in the suit of Humphrey against Edinger & Co. so conclusively binding on Edinger & Co. as to preclude them from successfully maintaining an action against the insurance company on its policy contract? Or to put it in other words: Was the verdict of the jury in the Humphrey case, and the judgment thereon, such an adjudication of the fact that the mule in question was a wild and vicious animal as to relieve the insurance company from liability on its policy contract, although it was not a party to the suit between Humphrey and Edinger & Co?
It is contended on behalf of the insurance company that, as there was a judgment against Edinger & Co. based on a state of facts that showed the mule in question to be a wild and vicious animal, of which suit the insurance company had notice, although it failed and refused to take any part in it, Edinger & Co. were bound by the facts established in the Humphrey case as shown by the judgment, and therefore they could have no cause of action on the judgment against the insurance company. On the other hand, the argument in behalf of Edinger & Co. is that the question whether the risk involved was covered by the insurance policy was not litigated in the suit between Humphrey and Edinger & Co., and therefore Edinger & Co. have never had an opportunity to try out this question with the insurance company, and therefore the...
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