Md. Cas. Co. v. Peppard

• Decision Date: 07 December 1915
• Docket Number: Case Number: 7171
• Citation: 157 P. 106,53 Okla. 515,1915 OK 1029
• Parties: MARYLAND CASUALTY CO. v. PEPPARD et al.
• Court: Oklahoma Supreme Court

1915 OK 1029

157 P. 106

53 Okla. 515

MARYLAND CASUALTY CO. v. PEPPARD et al.

Case Number: 7171

Supreme Court of Oklahoma

Decided: December 7, 1915

Syllabus

¶0 1. GARNISHMENT--Insurance--Employers' Liability Insurance--Liability of Claim to Garnishment--"Loss From Liability." The assured entered into a contract with an employers' casualty insurance company by the terms of which the company indemnified the assured "against loss from the liability imposed by law upon the assured for damages on account of bodily injuries, including death resulting therefrom, accidentally suffered by any employee of the assured," etc. Thereafter, upon action being brought by the personal representative of an employee of the assured, who died as the result of bodily injuries, the insurance company took sole charge of the defense, to the exclusion of the assured, as it had a right to do under the policy. Held, that the policy is one to indemnify the assured against liability. Held, further, that the final judgment in favor of the plaintiff in the action against the assured became, as between plaintiff, defendant, and the company, a liability or debt owing by the company to the assured, which such plaintiff might reach by garnishment.

2. INSURANCE--Employers' Liability Insurance--Extent of Liability. Agreed statement of facts and record examined, and held: That they do not disclose whether the person injured was a "direct employee" of the assured within the meaning of that term as used in another casualty insurance policy wherein the company agrees to indemnify the assured against liability on account of bodily injuries accidentally suffered by any person other than direct employees of the assured, and which further provides that: "This policy does not cover any accident to, or caused by, any direct employee of the assured."

3. SAME. Such policy further provided: "The company's liability for loss from an accident resulting in bodily injuries, including death resulting therefrom, to one person, is limited to five thousand dollars ($ 5,000.00), and, subject to the same limit for each person, the company's total liability for loss from an accident resulting in bodily injuries, including death resulting therefrom, to more than one person is limited to ten thousand dollars ($ 10,000.00). In addition to these limits, the company will, at its own cost (court costs and all interest accruing after entry of judgment upon such part thereof as shall not be in excess of the limits of the company's liability as hereinbefore expressed being considered part thereof), investigate all accidents and defend all suits, even if groundless, of which notices are given to it as hereinafter required, unless the company shall elect to settle the claim or suit."

Held, that the $ 5,000 limitation does not include interest and the costs and expenses of the original action prosecuted or defended by the company pursuant to the terms of the policy, that upon recovery of a larger sum by the plaintiff therein the company, in addition to such limit, is liable for such court costs and all interest accruing upon such part of said judgment as is not in excess of said $ 5,000 limitation.

Error from District Court, Oklahoma County; Edward Dewes Oldfield, Judge.

Action by Onno Peppard against the Oklahoma City Construction Company and another, as defendants, and the Maryland Casualty Company, as garnishee. Judgment for plaintiff, and the garnishee brings error. Modified, and cause remanded, with instructions.

Jas. S. Ross and L. D. Threlkeld, for plaintiff in error.

Harris, Nowlin & Singleton, for defendant in error Peppard.

KANE, C. J.

¶1 This was a garnishment proceeding which arose out of the case of Oklahoma City Construction Company et al. v. Onno Peppard, 43 Okla. 121, 140 P. 1084. After the judgment in that case in favor of the defendant in error Onno Peppard had been affirmed, the plaintiff, being unable to collect the same from the judgment debtors, filed an affidavit for garnishment to the effect that the Maryland Casualty Company, a corporation, had property of the defendants, Oklahoma City Construction Company and W. B. Skirvin, and was indebted to defendants, Oklahoma City Construction Company and W. B. Skirvin, and each of them, etc. The answer of the garnishee was to the effect that it had been and was then in no manner and upon no account indebted or under liability to the defendant Oklahoma City Construction Company, a corporation, or the defendant W. B. Skirvin, and that it had had and then had in its possession or under its control no real estate and no personal property, effects, or credits of any description belonging to either of said defendants or in which either of them had had or had then any interest, and was in no manner liable as garnishee in this action.

¶2 Thereafter, issue having been taken with the answer of the garnishee, the cause was heard by the court, which resulted in the issues being found in favor of the plaintiff and against said garnishee, the court finding that:

"The said garnishee, the Maryland Casualty Company of Baltimore, a corporation, has in its possession and under its control money, property, and effects belonging to and is indebted to the said defendant W. B. Skirvin and the said defendant the Oklahoma City Construction Company, a corporation, the total sum of $ 12,249.15"

--and thereupon the court ordered the garnishee to pay said sum to the plaintiff to the satisfaction of the judgment against said defendants.

¶3 To reverse this action of the trial court this proceeding in error was commenced. Hereafter the parties will be designated as "plaintiff" and "defendant" respectively, as they appeared in the court below, the latter denoting the garnishee.

¶4 From the agreed statement of facts upon which this cause was tried and the opinion in Oklahoma Construction Company et al. v. Peppard, supra, which is made a part thereof, it appears that the defendant, who was engaged in the business of casualty insurance in the State of Oklahoma, and the Oklahoma City Construction Company and W. B. Skirvin entered into three separate contracts of casualty insurance, and that out of these contracts arises the liability, if any, of the defendant. It is contended on the part of the defendant: (1) That the company is not liable as garnishee upon any of the insurance contracts, for the reason that by the terms of each of them it obligated itself to indemnify W. B. Skirvin and Oklahoma City Construction Company against loss imposed by law upon the assured for damages on account of bodily injuries, including death resulting therefrom, accidentally suffered by any employee of the assured while engaged in the occupation and at the place mentioned in the contract, and, as the assured did not satisfy the judgment rendered against them, they suffered no loss, and hence the defendant incurred no liability upon any of its contracts; (2) that, if this proposition is decided adversely to it, then the defendant is only liable on one of its policies, to wit, policy C-19365, known as "contractor's employers' policy"; (3) if the defendant is held to be liable upon more than one of its policies, then the judgment of the trial court is excessive in the sum of $ 2,249.15, it being that sum in excess of the amount due the assured according to the terms of the policy. As the plaintiff contends that the defendant is liable on only two of its policies, to wit, No. H-2574, called the "contractor's contingent policy," and policy No. C-19365, called "contractor's employers' policy," we will confine our investigation to these two policies.

¶5 These contracts are the ordinary policies issued by this company, and are similar in their terms to many casualty insurance policies which have been under consideration by the courts, except that they do not contain what is generally designated by the courts the "no action" clause. Without setting out the contracts in full, the material provisions necessary to present the questions raised herein may be stated as follows: (a) The company agrees to indemnify the assured against loss from the liability imposed by law upon the assured for damages on account of bodily injuries, including death resulting therefrom, accidentally suffered by any employee of the assured while engaged in the occupation and at the places mentioned in the contract; (b) the company's liability for loss from an accident resulting in bodily injuries, including death resulting therefrom, to one person is limited to $ 5,000, and, subject to the same limit for each person, the company's total liability for loss from an accident resulting in bodily injuries, including death resulting therefrom, to more than one person is limited to $ 10,000; (c) in addition to these limits, the company will, at its own cost (court costs and all interest accruing after entry of judgment upon such part thereof as shall not be in excess of the limits of the company's liability as hereinbefore expressed being considered part thereof), investigate all accidents and defend all suits, even if groundless, of which notices are given to it as hereinafter required, unless the company shall elect to settle the claim or suit; (d) immediate notice in writing of any accident and of any suit resulting therefrom, with every summons or other process, must be forwarded to the home office of the company, or to its authorized representative; (e) the company is not responsible for any settlements made or any expenses incurred by the assured, unless such settlements or expenditures are first specifically authorized in writing by the company, except that the assured may provide at the time of the accident, at the expense of the company, such immediate surgical relief as is imperative.

¶6 In support of their first contention counsel for defendant say in their brief:

"In this case it will be noted that Skirvin and the construction company are both insolvent and have not paid out or lost anything by

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