Henderson Lighting & Power Co. v. Maryland Cas. Co.

• Decision Date: 26 October 1910
• Citation: Henderson Lighting & Power Co. v. Maryland Cas. Co., 153 N.C. 275, 69 SE. 234 (N.C. 1910)
• Parties: HENDERSON LIGHTING & POWER CO. v. MARYLAND CASUALTY CO.
• Court: North Carolina Supreme Court

69 S.E. 234

153 N.C. 275

HENDERSON LIGHTING & POWER CO. v. MARYLAND CASUALTY CO.

Supreme Court of North Carolina

October 26, 1910

Appeal from Superior Court, Vance County; D. L. Ward, Judge.

Action by the Henderson Lighting & Power Company against the Maryland Casualty Company.From a judgment for plaintiffdefendant appeals.Reversed and remanded.

The liability of an insurer against loss from liability imposed by law on insured for damages for bodily injuries suffered by any person not employed by insured while at or about the work of insured during the prosecution of the work does not cover an injury to a child falling into an unsecurely covered well on insured's premises while trespassing thereon to look into the window of a theater adjacent to the premises.

This action was brought on a policy of insurance to recover a loss alleged to have been sustained by the plaintiff.In October 1907, Walter H. Briscoe was injured by falling into a sunken tub or shallow well of hot water on the land of J. H Bridgers, in Henderson, N. C., a narrow strip of land four feet wide between the Henderson Amusement Company building or theater and the land of the Henderson Lighting & Power Company.The well was located and placed by the amusement company for its own purposes when its theater was erected about one year before the accident.The well was placed touching the building and immediately under a window of the building to a room which was used as a dressing room of the theater.The well was under the exclusive control of the amusement company.The power company had no concern, no duty, and no responsibility in respect to it.It was not in possession of it, and did not use it for any purpose.At the time of the accident it was covered over with loose boards.There was an open space between the strip on which the well was located and the building of the power company, which open space was the property of the power company, and is about 18 feet wide.This space is not fenced in, but opens on Spring street.Briscoe had been upon the open space belonging to the power company before, and had been ordered off by this company.

From Spring street, opposite said space, the machinery or boilers or furnaces of the power company are not visible.From the well, where the accident happened, none of the machinery, furnaces, or boilers are visible.Briscoe at the time of the accident was at the well, which is directly under the window of the amusement company, peeping in at the window, and he fell in the well and was injured.There is no evidence that Briscoe was invited to go upon the land of the Henderson Lighting & Power Company, or that he was allured, attracted, or induced to go there by the machinery of this company.There is no evidence that he went on the premises in order to view the machinery, and there would have been no danger to him in viewing the machinery through the door or window.Briscoe was not even a licensee.He was a trespasser at the time of the accident.The power company owed him no duty in respect to the well.He was a youth 13 or 14 years old, bright, intelligent, and bad.The public were in the habit of using the open space between the two buildings, and this was alleged by Briscoe in his amended complaint.Briscoe brought suit against the power company to recover damages for the injury, and this court sustained a demurrer to his complaint, and held that, according to the facts as stated in his complaint, no legal liability of the power company to Briscoe had been alleged.148 N.C. 396, 62 S.E. 600, 19 L.R. A. (N. S.) 1116.Briscoe amended his complaint, and the power company again demurred.This demurrer was overruled, with leave to answer over, and an appeal taken, but not prosecuted.The power company thereupon compromised and settled Briscoe's claim by the payment of $100 and the costs, and brings this action to recover the same and $500 for counsel fees, alleging that the settlement with Briscoe was a perfectly reasonable one and was made after the casualty company had been notified to defend that suit, and had refused to do so upon the ground that the power company had failed to give notice of the claim and to comply with other requirements of the contract respecting suits brought against it.The $100 and the costs were paid by the power company before this action was commenced, but no counsel fees had been paid.

The policy of insurance provides as follows:

(1)The defendant will indemnify the plaintiff against loss from liability imposed by law upon the assured for damages on account of bodily injuries or death accidentally suffered while this policy is in force by any person or persons not employed by the assured while at or about the work of the assured, described in the schedule, during the prosecution of the said work at the place or places described in the schedule, subject to the following conditions:

(2) Upon the occurrence of an accident, the assured shall give immediate written notice thereof, with the fullest information obtainable at the time, to the company's home office or to the company's authorized agent.

(3) 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's home office every summons or other process as soon as the same shall have been served on him, and the company, at its own cost, will defend such suit in the name and on behalf of the assured, unless the company shall elect to settle the same or to pay the assured the indemnity provided for in condition A hereof.

(4) The assured shall not voluntarily assume any liability, nor shall the assured, without the written consent of the company previously given, incur any expense or settle any claim except at his own cost.

(5) No action shall lie against the company to recover for any loss under this policy, unless it shall be brought by the assured for loss actually sustained and paid in money by the assured in satisfaction of a judgment, after trial of the issue, nor unless such action is brought within 90 days after such judgment by a court of last resort against the assured has been so paid and satisfied.

The defendant moved for judgment of nonsuit upon the evidence, which was overruled, and the defendant excepted.It was agreed that, subject to this exception, a jury trial should be waived, and that the court should find the facts and answer the issues in the case.This was done and the facts, as stated herein, are selected from the findings of the court as those which are essential to a decision of the case in the view taken of it by this court.The court concluded as matters of law that the Briscoe claim is covered by plaintiff's policy and that, by denying liability in its answer, the defendant had waived its right to notice of the Briscoe claim and to a judgment after trial in his action.Judgment for the amount of the compromise, attorney's fees, and costs ($370) was rendered for the plaintiff, and the defendant appealed.

John W. Hinsdale, for appellant.

A. C. Zollicoffer and J. H. Bridgers, for appellee.

WALKER, J.(after stating the facts as above).

The general rule of construction applied by the courts to all contracts of insurance is that while, like other contracts they should be so construed as to give effect to the intention of the parties, yet, where there exists any doubt as to that intention, it is always to be resolved strictly against the insurer and in favor of the insured.Vance on Insurance, 429.When, however, the intention is clearly stated, it should be enforced according to the will of the parties as thus expressed, for in such a case there is no room for construction.The terms of the policy in question are, we think, free from any doubt or ambiguity.The defendant undertook to indemnify against loss from the liability imposed by law upon the assured (the plaintiff) for damages on account of bodily injuries accidentally suffered by any person not employed by the assured, while at or about the work of the assured and during the prosecution of the said work at the place described in the schedule.We have held after careful consideration of all the essential facts that the power company is not liable in damages for the injuries to Walter Briscoe, resulting from his fall in the vat.Briscoe v. Power Company,148 N.C. 396, 62 S.E. 600, 19 L. R. A. (N. S.) 1116.The facts, as now presented to the court, are much stronger against his right to recover than those which we formerly considered.The clause of the policy by which the defendant agreed to defend any suit brought against the assured refers explicitly to a suit brought "to enforce a claim for damages on account of an accident covered by the policy," and, in order to determine whether the casualty company was under any duty or obligation to defend the Briscoe suit, we must first ascertain whether the law imposed a liability upon the power company for the accident to him, for, if it did not, his claim is plainly not covered by the policy, as it refers to a claim founded upon a liability imposed by law, and not to false or fictitious claims.The indemnity is against loss from liability, and it would be stretching, if not perverting the meaning of the words to extend the application of them to all suits and require the casualty...