Kennedy v. Fidelity and Casualty Company of New York

• Decision Date: 04 January 1907
• Docket Number: 14,882 - (110)
• Citation: 110 N.W. 97,100 Minn. 1
• Parties: CHARLES D. KENNEDY v. FIDELITY AND CASUALTY COMPANY OF NEW YORK
• Court: Minnesota Supreme Court

110 N.W. 97

100 Minn. 1

CHARLES D. KENNEDY v. FIDELITY AND CASUALTY COMPANY OF NEW YORK

Nos. 14,882 - (110)

Supreme Court of Minnesota

January 4, 1907

Action in the district court for Ramsey county to recover $5,000 upon an employer's liability insurance policy. The case was tried before Brill, J., who directed a verdict in favor of the plaintiff. From an order denying a motion for judgment notwithstanding the verdict or for a new trial, defendant appealed. Affirmed.

SYLLABUS

Casualty Insurance -- Right of Action.

A condition in a casualty insurance policy provided: "No action shall lie against the company as respects any loss under this policy unless it shall be brought by the assured himself to reimburse him for loss actually sustained and paid by him in satisfaction of a judgment within sixty days from date of such judgment and after trial of the issue." Held, the policy constituted a contract of indemnity, and payment and satisfaction of the judgment may be made by the assured by the execution and delivery of promissory notes, if executed in good faith and so accepted by the judgment creditor, and thereupon a cause of action accrues in favor of the assured and against the company.

Evidence.

There is no evidence in this case to warrant the conclusion that the payment and satisfaction of the judgment was not executed in good faith.

Robert E. Olds and Davis, Kellogg & Severance, for appellant.

Samuel A. Anderson and John C. Magan, for respondent.

OPINION

LEWIS, J.

Respondent was the owner and operator of a steam laundry, and was insured by appellant company against loss up to $5,000 from liability for damages on account of bodily injuries suffered by his employees. One of his employees, Kathryn Carlin, was injured during the term of the policy and recovered a judgment against respondent for $7,943.75, which was entered January 19, 1906. February 24, 1906, the judgment was satisfied, and in full payment thereof respondent delivered to the judgment creditor, or her attorney, four promissory notes, dated on that day, with interest at six per cent. per annum, and indorsed by M. J. Clark, guarantor; one for $1,000, payable in three instalments, $200 sixty days, $400 six months, and $400 one year from date thereof; another for $1,000, payable in four equal quarterly instalments beginning May 24, 1907; one for $1,000, payable in four equal quarterly instalments beginning May 24, 1908; and one for $2,000 payable in four equal quarterly instalments beginning May 24 1909. No cash, property, or other consideration than the execution and delivery of the notes passed from respondent to Kathryn Carlin in satisfaction of the judgment. Respondent, having made demand upon appellant company for the payment of the face of the policy, commenced this action, and at the close of the case the court directed a verdict for plaintiff for the full amount demanded. Appeal was taken from an order of the court denying appellant's motion for judgment notwithstanding the verdict, or for a new trial. $202 was paid on the first note after the action was commenced.

The policy upon which the suit was founded provided that the company, in consideration of the warranties made in the application for the policy and $25, agreed to...