London Guarantee And Accident Co., Ltd. v. Siwy
| Decision Date | 19 February 1903 |
| Docket Number | 4,279 |
| Citation | 66 N.E. 481,35 Ind.App. 340 |
| Parties | LONDON GUARANTEE AND ACCIDENT COMPANY, LIMITED, v. SIWY |
| Court | Indiana Appellate Court |
Rehearing denied June 30, 1904.
Transfer denied April 21, 1905.
From Lake Circuit Court; John H. Gillett, Judge.
Action by Mike Siwy against the London Guarantee and Accident Company. From a judgment for plaintiff, defendant appeals.
Reversed.
Miller Elam & Fesler, Frank J. Canty and John B. Peterson, for appellant.
Crumpacker & Moran, for appellee.
The facts appearing from the record are substantially as follows: The appellant is a foreign corporation engaged in the business of insuring employers of labor against liability for damages to servants on account of injuries which such servants may receive while in the line of their employment. The East Chicago Iron & Steel Company was an Illinois corporation, engaged in the business of operating a rolling-mill at East Chicago, Indiana. On June 21, 1895, the appellant company insured said steel company for twelve months, from noon, June 21, 1895, to noon of June 21, 1896, against all liability for damages to its employes, in a sum not exceeding $ 5,000 for any injury to any one employe, where such injury resulted to the employe while in the service of the steel company at its plant. The appellee was in the employ of the steel company on December 13, 1895, and on said day, while in the service of the company, and in the line of his duty, sustained a serious injury. Upon the occurrence of said accident the steel company gave written notice to the general manager of the appellant company for the United States.
On July 24, 1896, the judge of the Lake Circuit Court, in chambers, in the case of Parkhurst against said steel company, appointed A. Murray Turner receiver of said steel company, and ordered and empowered him to take possession of all the property of said steel company, wherever situated. On October 12, 1896, this appellee, after obtaining leave of said circuit court so to do, commenced a suit for damages for the injury sustained while in the employ of said steel company, naming as defendant in said suit said steel company and said Turner, receiver. On the 6th day of January, 1898, this appellee recovered judgment in said suit against said steel company and said receiver for $ 1,500 and costs. Said steel company and said receiver appealed said cause to this court, and on the 21st day of December, 1899, said case was by this court dismissed, and has never been reinstated. On the 11th day of March, 1899, this appellee filed an intervening petition in the receivership suit, in which he set up his judgment, amounting at that date to $ 1,658.34, which petition was denied by the receiver. Such sum was allowed, however, as a general claim against the estate of said steel company. On the same day appellee filed a further petition in the receivership matter, based upon the policy of insurance issued by appellant, and the court ordered that all the right, title and interest of said steel company and said receiver be assigned to appellee, with authority to sue in his own name thereon, and in the same order directed the receiver, in the event appellee brought suit to enforce said policy, to appear to such action and answer, admitting the facts. Pursuant to said order, the policy of insurance was delivered to appellee by the receiver. Thereupon the appellee began this action upon said policy of insurance, averring the facts heretofore stated, with the further averments that the appellant had wholly failed to perform the conditions of said policy and that appellee and the assured had performed the conditions imposed upon them by said contract in every respect. Appellant answered in four paragraphs. Appellee replied in three paragraphs, and the cause having been put at issue was tried by the court. There was a finding and a judgment in favor of the appellee in the sum of $ 1,875.65.
The errors assigned and discussed in this court arise out of the ruling of the trial court in overruling appellant's motion for a new trial. It is contended by counsel for appellant that the evidence wholly fails to sustain the finding and judgment of the trial court.
On the back of the policy of insurance, issued to the steel company, were certain agreements and conditions, binding upon the assured, and under which agreements and conditions the policy was issued and accepted. The first of these conditions was in the following words:
The second paragraph of appellant's answer was based upon condition number one as above set out, and averred, among other facts, that the action wherein the appellee recovered a judgment against the steel company was commenced on the 12th day of October, 1896; that said Turner, receiver, and the steel company, had known of appellee's claim prior thereto, and that neither of said parties gave immediate notice in writing of such claim to appellant, as was provided in the policy of insurance, and that said appellant had no knowledge or notice that appellee had made a claim against the steel company or said Turner, receiver, until the 13th day of January, 1897; and that, on account of such failure to give notice as provided by the contract of insurance, said policy did not become effective, and said steel company and said Turner, receiver, lost any and all rights, growing out of said accident to appellee, which they, or either of them, might have had under said policy.
The second paragraph of appellee's reply is addressed to the appellant's second paragraph of answer, and attempts to avoid the failure to give notice to appellant of appellee's claim, by averring that the receiver did not know of the existence of the policy or of appellee's claim until this suit was commenced. It is further averred that the books and papers of said steel company were in the hands of the assignee of a corporation known as Parkhurst & Wilkinson, in Chicago, Illinois; that Parkhurst of said company was a large stockholder in said steel company; that the policy of insurance herein sued upon was among said papers, and that said Turner, receiver, did not have access to them. It is further averred that appellee knew nothing of the existence of said policy until after the appellant was notified. The third paragraph of reply alleges that appellant waived any violation of the conditions of the policy of insurance by the assured or any one claiming thereunder.
The contention of appellant's counsel is that there was a failure to comply with that condition of the policy which required...
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