Independent Milk & Cream Co. v. Aetna Life Ins. Co.

• Decision Date: 30 June 1923
• Docket Number: 5208.
• Parties: INDEPENDENT MILK & CREAM CO. v. ÆTNA LIFE INS. CO.
• Court: Montana Supreme Court

216 P. 1109

68 Mont. 152

INDEPENDENT MILK & CREAM CO. v. ÆTNA LIFE INS. CO.

No. 5208.

Supreme Court of Montana

June 30, 1923

Commissioner's Opinion.

Appeal from District Court, Silver Bow County; Wm. L. Carroll Judge.

Action by the Independent Milk & Cream Company against the Ætna Life Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Frank & Gaines and W. S. Rynerson, all of Butte, for appellant.

J. A Poore and W. D. Kyle, both of Butte, for respondent.

ROSE C.

This action was instituted to recover on an indemnity insurance policy issued by the defendant to the plaintiff on December 8, 1919, by the terms of which the defendant company agreed subject to certain conditions, to indemnify the assured against loss or expense resulting from claims for personal injuries suffered or alleged to have been suffered by others than its employés by reason of the use of a certain automobile or motor truck described in the policy. The case was tried to a jury and a verdict returned for the plaintiff upon which judgment was duly entered and this appeal is from the judgment, the defendant's motion for a new trial having been denied.

The policy involved herein contains, among others, the following stipulations:

" Report of Suit Against Assured. C. If suit is brought against the assured to enforce a claim for damages covered by this policy he shall immediately forward to the company or its duly authorized agent 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 such suit in the name and on behalf of the assured. The assured, whenever requested by the company, shall aid in effecting settlements, securing information and evidence, the attendance of witnesses and in prosecuting appeals, but the assured shall not voluntarily assume any liability or interfere in any negotiation for settlement or in any legal proceeding, or incur any expense, or settle any claim, except at his own cost, without the written consent of the company previously given, except that, as respects liability for personal injuries covered hereunder, the assured may provide at the company's expense such immediate surgical relief as is imperative at the time of the accident.

Suit Against Companies. J. No action shall lie against the company to recover for any loss and/or expense covered by this policy arising or resulting from claims upon the assured for damages, unless it shall be brought by the assured for loss and/or expense actually sustained and paid in money by him after actual trial of the issue. The Ætna Life Insurance Company, in accordance with the terms of this policy, hereby assumes the following risks, while the automobiles described herein are within the limits of the United States of America and Canada, namely: Cause Five--Liability. Against loss and/or expenses arising or resulting from claims upon the assured for damages on account of bodily injuries and/or death accidentally suffered, or alleged to have been suffered, by any person or persons not hereinafter excepted, by reason of the ownership, maintenance and/or use of any of the automobiles described herein, provided such accidents or alleged accidents occur while this policy is in force, and provided further that: (1) This company shall not be liable under this clause of the policy for: (a) Accidents occurring while the automobiles described are being operated in any race or speed contest, or by any person in violation of law as to age or in any event under the age of sixteen years; (b) accidents to assured's domestic or household servants while engaged in operating or caring for an automobile; (c) accidents to any other employee of the assured arising out of and in the usual course of the trade, business, profession or occupation of the assured; (d) any obligation assumed by or imposed upon the assured by any Workmen's Compensation agreement, plan or law. (2) This company's liability for loss on account of an accident resulting in bodily injuries and/or death to one person is limited to five thousand dollars ($5,000); and, subject to the same limit for each person, this company's total liability for loss on account of any one accident resulting in bodily injuries and/or death to more than one person is limited to ten thousand dollars ($10,000)."

During the life of the policy one John Ouimet was seriously injured by the automobile truck of respondent and thereafter, through his guardian, instituted suit to recover $30,000 damages, in which action it was alleged that Ouimet was an employé of respondent at the time of the injury complained of, which was denied in respondent's answer. In compliance with the terms and conditions of the policy the appellant was duly notified of the suit and the summons and complaint were promptly delivered to it, whereupon appellant refused to assume any responsibility and declined to defend the action upon the alleged ground that Ouimet was an employé of respondent company. Upon the refusal of appellant to defend the action, the respondent interposed an answer and after issue joined, upon advice of counsel, compromised the claim for the sum of $3,000 and consented that judgment be rendered against it for said sum, which amount was paid by respondent to Ouimet, and after payment of the judgment the present action was instituted following appellant's refusal to reimburse respondent for the amount, with costs, together with $200 expended for counsel fees.

The two principal questions submitted on this appeal for determination are: (1) Whether Ouimet was or was not an employé of respondent at the time of the accident; and (2) we are required to construe the policy provision designated clause J, requiring respondent's liability to be determined by a...