Fidelity & Casualty Company v. Fordyce

• Decision Date: 12 June 1897
• Citation: 41 S.W. 420,64 Ark. 174
• Parties: FIDELITY & CASUALTY COMPANY v. FORDYCE
• Court: Arkansas Supreme Court

41 S.W. 420

64 Ark. 174

FIDELITY & CASUALTY COMPANY v. FORDYCE

Supreme Court of Arkansas

June 12, 1897

Appeal from Pulaski Circuit Court, Second Division JOSEPH W. MARTIN Judge.

Affirmed.

Jno. M. Rose, for appellant.

1. This is merely an indemnity policy, and, the company having paid nothing, there is no liability. 50 N.W. 496; 48 id. 123; ib 126; 6 Hill, 324; 1 Const. 550; 59 N.W. 1054; 144 N.Y. 182; 30 Wis. 68. Actual damage must be shown. 17 So. Rep. 646; 39 N.E. 83. The mere fact that a judgment has been obtained does not entitle the person indemnified to recover. 1 N.Y. 550; 21 N.J.L. 73; 6 Hill, 324; 2 Vt. 532. See also 1 May, Ins §§ 1, 3; L. R. 11 Q. B. Div. 380; 15 Minn. 376 (461); 42 Minn. 115; 47 id. 377; 52 id. 23; 53 id. 212; 51 id. 474; 59 N.W. 1054.

2. The suit was premature, as two of the claims were pending on appeal to the supreme court. The litigation was not ended. 10 Am. & Eng. Enc. Law, p. 433.

Rose, Hemingway & Rose, for appellees.

All the points in this case are determined by 62 Ark. 562, 569. The fact that appeals had been taken on two of the claims without supersedeas did not impair the judgments as liabilities. 45 Ark. 373; 19 id. 420. Some courts hold that when an appeal is taken with supersedeas, the effect of the judgment as evidence is suspended; but the weight of authority is that the judgment continues operative as an estoppel. 110 N.Y. 386; 16 Ind. 107; 28 Conn. 433; 117 Mass. 108; 3 Sin. & M. 143; 89 Ind. 328; 132 Ill. 589.

BATTLE, J. BUNN, C. J., absent.

OPINION

BATTLE, J.

Two actions were commenced by S.W. Fordyce and Allen N. Johnson, receivers of the City Electric Street Railway Company, against the Fidelity & Casualty Company, and the Union Guaranty & Trust Company (which were afterwards, by consent, consolidated and heard as one action), on a policy executed by the Fidelity & Casualty Company to the City Electric Street Railway Company, to recover the amounts of judgments rendered against the Street Railway Company for damages resulting from personal injuries caused by the operation of its railway between the 9th of December, 1891, and the 9th of December, 1892. The portions of the policy upon which these actions were based, and which affect plaintiffs' right of recovery, are as follows:

"It is hereby agreed as follows: That the company (the Fidelity & Casualty Company) will pay to the insured (the City Electric Street Railway Company), or their legal representatives, any and all such sums as the insured may become liable for in damages in consequence of bodily injuries suffered by any person or persons whomsoever, while traveling on the railroad of the insured, or otherwise, in connection with the operation of said road during the period covered by the premium paid; that is to say, between the ninth day of December, 1891, and the ninth day of December, 1892, at noon, or by any renewal premium.

"1. The company's liability for a casualty resulting in injuries to or death by any one person is limited to fifteen hundred dollars, and, subject to the same limitation for each person, their gross liability for several persons injured or killed in any one casualty is ten thousand dollars.

"2. If any legal proceedings are taken against the insured by any person or persons injured as aforesaid to enforce a claim for indemnity for such injuries, then the company (the Fidelity & Casualty Company) shall, at their own cost and expense, have the absolute control of defending the same throughout in the name and on behalf of the insured; but if the company shall offer to pay the insured the full amount insured, then they shall not be bound to defend the case, nor be liable for any costs or expenses which the insured may incur in defending such case. Provided, always, that this policy is subject to the condition and agreements endorsed hereon, which are made part of this contract," a part of which is as follows:

"(1) Upon the occurrence of an accident in respect to which a claim may arise, notice thereof shall be immediately given by the insured to the company at their office in New York, and to whomsoever shall have countersigned their policy. The insured shall also furnish the company full information in relation to the accident.

"(2) On receiving from the insured notice of any claim, the company may take upon themselves the settlement of the same; and in that case the insured shall give all reasonable information and assistance necessary for that purpose. The insured shall not, except at his own cost, settle any claim or incur any expense without the consent of the company."

The defendants answered, and admitted the execution of the policy, but "denied that it agreed to pay all sums for which the railway company might be liable, and averred that the Fidelity & Casualty Company only agreed to indemnify and reimburse the said railway company for any and all sums it might pay on account of said injuries, not exceeding fifteen hundred dollars in any one case. They admitted the judgments set up in the complaints, but averred that the Fidelity & Casualty Company was not liable to pay the same, because the City Electric Street Railway Company had not paid them, but only paid money into the registry of the United States court, and was not damaged by such deposit, within the meaning of the policy of insurance. They denied the liability of the Fidelity & Casualty Company, because it had the right to control the litigation, and was then contesting the liability of the railway company in the supreme court, and such suits had not been determined by the said supreme court."

The issues were tried by the court, sitting as a jury, upon the pleadings, exhibits, and an agreed statement of facts, a part of which is as follows:

"It is agreed between the parties to this case that on the 12th day of July, 1892, one Arthur Connery received personal injuries, on account of which he brought suit against the City Electric Street Railway Company for damages which were alleged to have been occasioned in the operation of the road of said railway company in Little Rock.

"That on the same day one Russell Yates received injuries by being burned by a telephone wire which was alleged to have been in contact with a live trolley wire of the said street railway company in said city, to recover damages for which he brought suit against the said street railway company.

"That on the 30th day of October, 1892, one W. H. H. Riley was injured by being run over by a car of the said railway company in said city, on account of which he instituted an action against the said street railway company.

"On the 15th day of February, 1892, one Lawrence Levy was run over and killed by the cars of the street railway company in said city, and the administrator of said estate brought suit to recover damages occasioned to the next of kin, and also to the estate of said Lawrence Levy, by reason of said killing.

"That on the day of April, 1892, one S.W. Davies was injured while alighting from the cars of the said street railway company in said city, and to recover the damages occasioned thereby he brought suit against...