Employers' Liability Assur. Corp. of London, Eng. v. Chicago & Big Muddy Coal & Coke Co.

• Decision Date: 01 August 1905
• Docket Number: 1,155.
• Citation: 141 F. 962
• Parties: EMPLOYERS' LIABILITY ASSUR. CORP., OF LONDON, ENGLAND, v. CHICAGO & BIG MUDDY COAL & COKE CO.
• Court: U.S. Court of Appeals — Seventh Circuit

141 F. 962

EMPLOYERS' LIABILITY ASSUR. CORP., OF LONDON, ENGLAND, v. CHICAGO & BIG MUDDY COAL & COKE CO.

No. 1,155.

United States Court of Appeals, Seventh Circuit.

August 1, 1905

Wm. C Quarles, for plaintiff in error.

Frank M. Hoyt, for defendant in error.

The action in the Circuit Court was to recover on a policy of insurance, indemnifying the defendant in error against loss for common law or statutory liability, for damages on account of bodily injuries, fatal or non-fatal, suffered within the period of such policy, by any employe of the defendant in error. The occasion of the suit was that one Charles Coats an employe of defendant in error, while on duty as such employe, in its coal mine, was struck by a large piece of slate falling from the roof of the mine, receiving injuries resulting in death.

After the death of Coats, an action was commenced by Nancy C Coats, widow, to recover damages for the loss of her husband's life. In the suit of

Nancy C. Coats, the declaration in its first count, averred that contrary to the statute of Illinois relating to coal mines, the defendant in error had willfully and negligently failed and neglected to have its mine examined, and its working places marked, by a duly authorized examiner, on the day when the accident occurred; and in its second count, that the defendant in error willfully failed and neglected to furnish, though demanded by Coats, props, caps and timbers of suitable length and dimensions, for securing the roof of the working place in the mine in which he worked, though the lengths and dimensions of such props, caps and timbers had been specified theretofore by Coats. In addition to the two counts, the declaration as originally filed, contained a further count-- the common law count-- that it was the duty of the defendant in error to furnish Coats a reasonably safe place in, and safe appliances with which to work. But this count was dropped by amendment before the Coats case came to trial.

Upon the commencement of the action by Nancy C. Coats, the plaintiff in error retained attorneys to defend it; a copy of the declaration was furnished to the plaintiff in error; all the facts on which the action was based, and all the pleadings were furnished plaintiff in error; in short, full dominion of the action was given to it. Whereupon, as averred in the declaration, the plaintiff in error, without any disclaimer of liability on its part, and without notifying the defendant in error in any way, that it would in any event consider itself absolved or discharged from liability to pay any judgment, which might be recovered in said action against the defendant in error, represented to and assured the defendant in error that it would take full charge of the action...