Frank Parmelee Co. v. Aetna Life Ins. Co.
| Decision Date | 06 October 1908 |
| Docket Number | 1,465. |
| Citation | 166 F. 741 |
| Parties | FRANK PARMELEE CO. v. AETNA LIFE INS. CO. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Andrew R. Sheriff, for plaintiff in error.
Robert J. Slater, for defendant in error.
Before GROSSCUP, BAKER, and SEAMAN, Circuit Judges.
The action in the Circuit Court was in assumpsit; upon a policy of insurance issued by the defendant in error to the plaintiff in error, insuring the plaintiff in error against loss from common law or statutory liability for damages on account of bodily injuries, fatal or non-fatal, accidentally suffered by any person or persons, and caused through the negligence of the assured by means of the horses or vehicles in his service (the plaintiff in error being engaged at the time in the teaming and omnibus business), subject to certain special and general agreements, one of which was as follows:
'If thereafter any suit 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 Company every summons or other process as soon as the same shall have been served on him, and the Company will at its own cost defend against such proceeding in the name and on behalf of the Assured, or settle the same, unless it shall elect to pay to the Assured the indemnity provided for.'
The declaration, as finally amended, after setting forth the policy of insurance, including the provisions as above averred that on the 18th of August, 1902, the plaintiff in error became and was, liable for damages on account of bodily injuries accidentally suffered by one Cora Whelock, caused on said day, through the negligence of the plaintiff in error by means of horses and vehicles in its service; that immediate notice thereof was given to the defendant in error that on the 23rd day of September, 1902, suit was commenced in the Circuit Court of Cook County, Illinois, against plaintiff in error, by said Cora Whelock, to recover damages on account of the injuries so suffered; that on the 10th day of October, 1902, a summons was filed in the court where such suit was brought, with the Sheriff's return thereon that it had been served upon plaintiff in error by delivering a copy thereof to one J. J. Gany, Secretary of said plaintiff in error; that said Gany was not at the time of such service clerk, secretary, superintendent, general agent, or any agent of said plaintiff in error, upon whom summons could be served; that one John B. Wilbur, was at that time secretary of said plaintiff in error, and that said summons was not served on him; that said paper thus filed was the only summons, and the only return purporting to have been issued and returned against plaintiff in error in said cause; that plaintiff in error had no notice or knowledge of said suit, or said summons, or of a default entered in said suit (January 30th, 1903), or of any proceedings in said suit until the 2nd day of September, 1904; that upon the discovery, by chance, on said 2nd day of September, 1904, that said suit was pending, and said default had been entered, notice was immediately given to defendant in error by plaintiff in error, in writing, requesting defendant in error to defend the same-- the defendant in error about the same time being informed in writing by the plaintiff in error, that the return on the summons was false, and that said order of default was improperly made; that on the 10th day of September, 1904, the plaintiff in error was notified by defendant in error, in writing, that defendant in error disclaimed all liability; and on the 15th day of October, following, added that the defense of the suit was declined, 'by reason of your violation of condition two of our policy (the one above set forth) which requires immediate notice of suit'; that thereafter, plaintiff in error was compelled by reason of said order of default, to enter its appearance in said suit, and to assume the defense thereof, doing everything...
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