Employers' Liability Assur. Corp., Ltd. v. Jones County Lumber Co.

• Decision Date: 26 June 1916
• Docket Number: 18385
• Citation: 72 So. 152,111 Miss. 759
• Parties: EMPLOYERS' LIABILITY ASSUR. CORP., LTD. v. JONES COUNTY LUMBER CO
• Court: Mississippi Supreme Court

72 So. 152

111 Miss. 759

EMPLOYERS' LIABILITY ASSUR. CORP., LTD. v. JONES COUNTY LUMBER CO

No. 18385

Supreme Court of Mississippi

June 26, 1916

APPEAL from the circuit court of Forest county, HON. PAUL B JOHNSON, Judge.

Suit by Jones County Lumber Company against the Employer's Liability Assurance Company. From a judgment for plaintiff defendant appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

Deavours & Hilbun, for appellant.

Tally &amp Mayson, for appellee.

OPINION

STEVENS, J.

Appellant is a corporation engaged in the business of indemnifying manufacturing and public service corporations against damages sustained by the assured as result of accidents to assured's employees, and, in the course of its business, issued to appellee, the Jones County Lumber Company, a policy of insurance which constitutes the basis of the present action. While this policy was in effect and on May 15, 1911, one J. L. Lawrence, an employee of the Jones County Lumber Company, was injured while assisting in the loading of some logs about eight miles from the lumber mill, or plant of appellee, located at Crottstown, Miss. It appears that the employee Lawrence, while under the direction of the woods foreman of the company, received orders to go between the cars of the logging train and was injured; that the injury was not regarded as serious by the foreman in charge of the loader, and was not regarded of sufficient importance to report; that Lawrence resumed work shortly after he was injured, and did not himself notify the company of his intention to claim and made no claim for damages until January 31, 1913, when he filed his declaration in the circuit court of Jones county, claiming damages from appellee; that process was issued for appellee as defendant, returnable the fourth Monday of June, 1913, and, upon its being served upon the defendant, the Jones County Lumber Company, they gave notice to appellant of the claim and suit for damages both by letter and telegram. Appellant declined to defend the suit instituted by Lawrence on the ground that appellee had not promptly notified it of the injury received by Lawrence, and also because it was not promptly notified of the institution of the suit. These and other facts are disclosed by the agreed statement of facts entered into by the parties on the trial of the case in the court below. Lawrence recovered judgment for five hundred dollars which appellee paid and discharged; and it now prosecutes this action upon its policy of insurance to recover the damages sustained as a result of the said suit, including seven hundred and fifty dollars attorney's fees expended by it in defending the suit prosecuted by Lawrence. Process in the Lawrence suit was served on the bookkeeper and agent of the lumber company April 18, 1913, and appellant was given notice of the filing of this suit under date of June 17th, and again June 19th. The circuit court convened June 23d thereafter, and the case was tried June 27th and 28th. The general agent of appellant maintained offices in New Orleans, La., and among the attorneys, from time to time engaged by appellant in Mississippi, was a firm of attorneys residing eight miles from Ellisville, the place where the trial of the Lawrence suit was had. The main office of appellee is in Mobile, Ala., where its officers reside; and, when the process was served on the inferior agent of the company at its mill plant in Mississippi, it was afterwards sent to appellee's office in Mobile, and as soon as the Mobile office received it the process was transmitted to appellant. Conditions D and E of the policy are as follows:

"Condition D. Upon the occurrence of an accident involving bodily injuries or death, the assured shall give immediate written notice thereof, with the fullest information obtainable at the time, to the corporation's home office at Boston, Mass., or to the corporation's authorized agent. If a claim is made on account of such accident the assured shall give like notice thereof with full particulars. The assured shall at all times render to the corporation all co-operation and assistance in his power.

"Condition E. If thereafter any suit, even if groundless, 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 corporation every summons or other process as soon as the same shall have been served on him, and the corporation will, at it own cost, and subject to the limitations contained in Condition A hereof, defend or at its option settle such suit in the name and on behalf of the assured."

The circuit court upon the pleadings and agreed statement of facts entered judgment in favor of appellee for the full amount sued for, and from this judgment appellant prosecutes an appeal.

It is insisted by appellant that no liability exists, for the reason that appellant received no notice of the injury sustained by the employee. It affirmatively appears, however that neither the injured employee nor his fellow servants in the woods notified the management of the Jones County Lumber Company that Lawrence was injured, or that he anticipated...