Mcbride v. Aetna Life Insurance Co.

• Decision Date: 01 January 1917
• Docket Number: 60
• Citation: 191 S.W. 5,126 Ark. 528
• Parties: MCBRIDE v. AETNA LIFE INSURANCE COMPANY
• Court: Arkansas Supreme Court

191 S.W. 5

126 Ark. 528

MCBRIDE v. AETNA LIFE INSURANCE COMPANY

No. 60

Supreme Court of Arkansas

January 1, 1917

Appeal from Pope Chancery Court; Jordan Sellers, Chancellor modified and affirmed.

decree affirmed.

U. L Meade and Pace, Seawel & Davis, for appellant.

1. The policy is an indemnity insurance policy and a liability insurance policy. 66 Ark. 562; 64 Id. 174. This court does not follow the rule in 72 N.H. 485.

2. The policy was assignable with or without the written consent of the insurer. Kirby's Digest, §§ 509, 517-18; 66 Ark. 243; 12 Idaho 653; 10 A. & E. Ann. Cas. 328; 157 F. 514; 85 C. C. A. 106; 138 F. 426; 133 Id. 816. The assignment as collateral vested in appellant a title sufficient to enable him to collect the proceeds. 112 F. 759; 68 Ark. 391; 77 Id. 60; 44 Id. 564; 95 Id. 482.

3. Under the terms of the contract appellee was liable. There was a substantial compliance, if not a strict one, with the clause as to expenses actually sustained and paid in money etc. 81 Ark. 92; 79 Id. 160; Ib. 266; 94 Id. 419; 80 Id. 49; 89 Id. 471; 67 Id. 553. See also 2 Ark. 360; 8 Id. 494; 78 Id. 93; 100 Minn. 1; 10 A. & E. Ann. Cases, 673; 135 Mich. 189; 3 A. & E. Ann. Cases, 480.

4. As the assignee appellant occupies the same relation to the insurer as did the insured. 210 N.Y. 233; 53 L. R. A. (N. S.) 632; 50 Wisc. 44; 18 L. R. A. (N. S.) 121.

5. The appellee is liable for all costs and expenses, interest from the date of judgment and for the full sum of the $ 5,000.00 152 F. 961; 82 C. C. A. 315; 12 L. R. A. (N. S.) 478; 132 F. 623; 157 Id. 514; 85 C. C. A. 106; 120 Ky. 218; 9 A. & E. Ann. Cas. 162; 135 Mich. 189; 3 A. & E. Ann. Cases, 478.

Roscoe R. Lynn, for appellee.

Cockrill & Armistead, of counsel.

1. This is an indemnity policy only. 66 Ark. 562; 64 Id. 174.

2. The assignment vested no right of action in appellant. 119 N.W. 308.

3. There can be no recovery except for money paid out by the assured. Payment by a sale of property is not sufficient. 159 N.W. 553.

4. Interest was erroneously allowed. 52 Wash. 124; 100 P. 190; 157 F. 519.

5. Costs should not have been allowed.

6. The real value of the lease was not more than $ 1,000.00, and in no event can appellant recover more than the lease sold for, and the mules $ 77.00, and the $ 426.00 paid with interest from the date paid.

OPINION

MCCULLOCH, C. J.

This is an action instituted to recover on an indemnity policy issued by the defendant, Aetna Life Insurance Company, to the Arkansas Anthracite Coal Company, and by the latter assigned to W. F. McBride. The suit was instituted for the benefit of plaintiff McBride, but the Arkansas Anthracite Coal Company, the original holder of the policy, joined as a party plaintiff.

The undertaking on the part of the insurance company, set forth in the policy, is to indemnify the assured "against loss and expense arising or resulting from claims upon the assured for damages on account of the bodily injuries or death accidentally suffered or alleged to have been suffered, by an employee or employees of the assured * * * whether said injuries or death are accidentally suffered or alleged to have been suffered." And the policy further provides that "no action shall lie against the company to recover for any loss, and for expense under this policy, unless it shall be brought by the assured for loss or expense actually sustained and paid in money by him after the actual trial of the issue." The liability of the company is by the terms of the policy limited to the sum of five thousand dollars for loss sustained through the death or injury of a single person. There is also a clause in the policy which provides that "no assignment of interest under this policy shall be valid unless the written consent of the company is endorsed hereon." McBride was an employee of the Arkansas Anthracite Coal Company, and while working for his employer in a coal mine received personal injuries for which he recovered judgment in an action at law for the sum of $ 16,500.00 and costs of suit. McBride's injury occurred during the life of the policy, and the defendant concedes that it is liable for loss sustained by the coal company, the assured, for any sums actually paid by the latter in satisfaction of the judgment or any part thereof.

McBride's judgment against the coal company was rendered in November, 1913, and the sum of $ 426.25 was paid to McBride by the coal company on March 13, 1914. Subsequently the property of the coal company was placed in the hands of a receiver by an order of the chancery court in a suit instituted by McBride, the property consisting of some live stock and a lease on about three hundred acres of mining lands, and the houses built thereon. The terms of the lease under which the coal company held the lands provided for the payment of royalties which amounted to about $ 2,500.00 a year, and the proof shows that there were debts in the way of back pay rolls owing by the coal company amounting to something over $ 2,000.00. The live stock was sold separately by the commissioner of the chancery court, and brought the sum of $ 77.60, which was paid over to McBride, and he bid in the leasehold and other property of the coal company at the commissioner's sale for the sum of $ 5,000.00 and credited that amount on the judgment; but his bid was made pursuant to an agreement with the Southern Anthracite Coal Mining Company to the effect that he would bid that amount for the property and transfer his bid to said Southern Anthracite Coal Mining Company for the sum of $ 1,000.00 payable in cash. That agreement was carried out and said amount paid to McBride by the Southern Anthracite Coal Mining Company, was all he received out of the purchase price of the sale. The sale was made on January 2, 1915, and was subsequently confirmed by the chancery court and a deed made by the commissioner to the Southern Anthracite Coal Mining Company.

The Arkansas Anthracite Coal Company, on February 4, 1914, assigned the policy to McBride, which was before the aforementioned payment of $ 426.25. This action was originally instituted at law, but by consent of parties was transferred to the chancery court. Considerable testimony was submitted to the chancellor, directed mainly to the question of the actual value of the assets of the Arkansas Anthracite Coal Company at the time of the sale by the commissioner, in order to determine whether the amount of the payment to McBride should be treated as one made in good faith for the full amount of the bid, or whether the real payment only amounted to the sum of $ 1,000.00, which was in fact paid over to him by the Southern Anthracite Coal Mining Company. There is a sharp conflict in that testimony, but we are of the opinion that the chancellor correctly found that, considering the royalties due under the lease and the back pay rolls due by the coal company, which constituted a fixed liability and had to be discharged before the mine could be operated, the sum of $ 1,000.00 which was actually paid over to McBride was a fair value for the equity of the coal company, and that that sum should be treated as the actual amount paid by the coal company on the judgment.

The chancellor found that the defendant insurance company was liable for said sum of $ 426.25, paid as aforesaid to plaintiff McBride by the coal company, and the sum of $ 77.60, the amount for which the live stock and other personal property was sold, and said sum of $ 1,000.00...