Globe Indem. Co. v. Sulpho-Saline Bath Co.
| Decision Date | 28 March 1924 |
| Docket Number | 6417. |
| Parties | GLOBE INDEMNITY CO. v. SULPHO-SALINE BATH CO. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Mathew A. Hall, of Omaha, Neb. (Carroll S. Montgomery and Raymond G Young, both of Omaha, Neb., on the brief), for plaintiff in error.
M. V Beghtol, of Lincoln, Neb. (C. F. Reavis, of Lincoln, Neb., on the brief), for defendant in error.
Before STONE and KENYON, Circuit Judges, and PHILLIPS, District Judge.
The Globe Company gave the Bath Company an insurance contract indemnifying it on account of claims for personal injuries. One paragraph of that contract provided that if the assured had other similar insurance, the loss should be prorated. Another paragraph provided, in part, as follows:
'No action for the indemnity against loss provided for in insuring agreement I of this policy shall lie against the company, except for reimbursement of the amount of loss actually sustained and paid in money by the assured in full satisfaction of a judgment duly recovered against the assured after trial of the issue. * * * '
The Bath Company had, at the same time, a similar policy with the Fidelity & Guaranty Company. An accident occurred and the Bath Company was sued. Both insurance companies were notified and requested to defend this action under their policies. The Globe Company denied all liability and declined to act. The Guaranty Company accepted liability and defended the suit. The Bath Company participated in this defense and incurred separate expenses for attorneys' fees and other matters. A judgment resulted which was paid in full by the Guaranty Company and satisfaction thereof entered of record. Thereafter the Guaranty Company discovered that it was liable only for one-half of this judgment because of a coinsurance clause in its contract and because of the coinsurance with the Globe Company. Thereupon it brought suit against the Bath Company and the Globe Company to recover one-half of this expenditure on account of the judgment. This action was in the state court. The court therein having intimated that his decision would be against the plaintiff, the plaintiff asked leave to dismiss without prejudice and such dismissal was entered. After this, demand was made by the Guaranty Company on the Bath Company for the return of one-half of the judgment payment and suit threatened unless such was forthcoming. Whereupon, the Bath Company made such restitution. The present suit is by the Bath Company against the Globe Company for the amount so returned and for one-half of the attorney's fees and expenses incurred by the Bath Company in defending the damage suit. The case was submitted, by written stipulation, to the court to determine both the facts and the law. No request for special findings nor statements of law were made by either party. The court made special findings and accorded recovery as sought and an allowance for attorneys' fees in the present case. From this judgment, the Globe Company sues this writ of error. In this state of the record, there is only one thing here for review; that is, the sufficiency of the findings to support the judgment. The findings follow the above statement of facts.
The contention by the Globe Company is that under the above quoted paragraph of its contract there could be no recovery against it until and unless the payment by the Bath Company to the Guaranty Company was in satisfaction of a judgment secured by the latter Company. This contention is utterly without merit. It is a patent attempt to avoid a liability which is clear. The insured was liable for the entire personal injury judgment. The Guaranty Company was obligated to indemnify it for only one-half thereof. If the Guaranty...
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