Mears Mining Co. v. Maryland Casualty Co.

• Decision Date: 04 March 1912
• Citation: 144 S.W. 883,162 Mo. App. 178
• Parties: MEARS MINING CO. v. MARYLAND CASUALTY CO.
• Court: Missouri Court of Appeals

144 S.W. 883

162 Mo. A. 178

MEARS MINING CO. v. MARYLAND CASUALTY CO.

Springfield Court of Appeals. Missouri.

March 4, 1912.

1. INSURANCE (§ 332¼, New vol. 14, Key No. Series)—INDEMNITY—CONTRACT—BREACH.

Assent to the retention and deposit in bank by a purchaser of property of an employer of part of the price to await the outcome of an appeal by the employer from a judgment for damages for the death of an employé, in which a sufficient appeal bond had been filed, did not violate a policy of employer's liability insurance, which provided that "the assured shall at all times render to the company all co-operation and assistance in his power," in that it made the claim less easy to settle by inspiring confidence in the claimant of ultimate collection of the claim.

2. EQUITY (§ 24)—FORFEITURE.

Forfeitures are not favored, and courts will not place a technical construction upon language for the purpose of creating a forfeiture.

3. INSURANCE (§ 579)—INDEMNITY—CONTRACT—AGREEMENT TO PRORATE.

An offer by an indemnity company to pay an employer a pro rata share of an amount paid by the employer to discharge a judgment for an injury to a servant, with a refusal by the employer to accept anything less than the full obligation of the indemnity company, does not constitute an agreement to release the company from liability to the limit specified in its policy, and to permit the prorating of the amount paid.

4. INSURANCE (§ 512)INDEMNITY—CONTRACTS—COMPROMISE AFTER JUDGMENT.

Where a contract of indemnity insurance provided that the insurer would indemnify the insured against loss from any liability that might be imposed by law not exceeding $5,000 on account of the death or bodily injuries of an employé, a further stipulation that the insured should not settle any claim without the consent of the insurer, contemplated only the settlement of claims before trial, and will not entitle the insurer to a proportional benefit of a compromise made in good faith after judgment and affirmance, which did not reduce the amount of judgment below the sum which the insurer was obligated to pay.

5. INSURANCE (§ 146)—INDEMNITY—CONTRACTS—CONSTRUCTION.

A contract of indemnity insurance is to be construed the same as other insurance contracts; i. e., most favorable to the insured.

6. STATUTES (§ 194)—INSTRUCTION—GENERAL AND SPECIFIC WORDS.

Where a statute in naming a class of objects uses general words which will cover all kinds of such objects, the words used will be given a general construction in the absence of express words in the statute itself limiting their meaning.

7. STATUTES (§ 194)—INSTRUCTION—GENERAL AND SPECIFIC WORDS.

While, where a statute enumerates particular classes of persons or things followed by general words, such words will ordinarily be limited to mean objects of the kind and character specified, the rule is resorted to merely as an aid to the ascertainment of the legislative intent, and, where from the entire statute and the purpose for which it was enacted, it is apparent that the general words were intended to include classes not specially designated, they must be given an extended meaning.

8. STATUTES (§ 194)—INSTRUCTION—GENERAL AND SPECIFIC WORDS.

And, where the particular words exhaust the class, the general words must be given a meaning beyond the class, or be discarded altogether.

9. INSURANCE (§ 602)—PAYMENT—DAMAGES FOR REFUSAL TO PAY—STATUTORY PROVISIONS.

Rev. St. 1909, § 7068, which provides that in any action against any insurance company to recover the amount of any loss under a policy of fire, life, marine "or other insurance," the court may allow damages and attorney fees where it appears that such company has vexatiously refused to settle, is highly penal, and should not be held to apply to any company or class of insurance which is not plainly included therein.

10. INSURANCE (§ 602)—PAYMENT—STATUTORY PENALTY—CONSTRUCTION.

In construing Rev. St. 1909, § 7068, which provides for the assessment of a penalty for a vexatious refusal to pay a loss under a policy of fire, life, marine, "or other insurance," and which was originally enacted in 1865, the fact that indemnity insurance was not in existence at the time of the enactment of the statute may be considered in determining whether or not the general words include that class of insurance, but is not conclusive.

11. INSURANCE (§ 602)—CONSTRUCTION— LEGISLATIVE INTERPRETATION.

And the fact that the statute was amended in 1911 to include indemnity insurance is strong evidence that in the opinion of the Legislature such insurance was not included in the original statute.

12. INSURANCE (§ 602)—INDEMNITY—PAYMENT—STATUTORY PENALTY.

Rev. St. 1909, § 7068, which provides that in an action to recover the amount of any loss under a policy of fire, life, marine "or other insurance" damages may be assessed for a vexatious refusal to pay, will not apply to an action on a policy of indemnity insurance, as such insurance is not of the same class as ordinary fire, life, and marine insurance.

Appeal from Circuit Court, Newton County; Carr McNatt, Judge.

Action by the Mears Mining Company against the Maryland Casualty Company. From a judgment for plaintiff, defendant appeals. Affirmed conditionally on remission of part of the recovery.

O. L. Cravens, for appellant. George Hubbert, for respondent.

GRAY, J.

This action is predicated upon an employer's liability policy, issued by the appellant to respondent July 2, 1907, by the terms of which the former agreed for a valuable consideration to indemnify the respondent for a period of twelve months against loss from liability that might be imposed by law upon respondent not exceeding $5,000 on account of death or bodily injuries suffered by any one employed by the respondent. At the time the policy was issued, the respondent was engaged in mining in Newton county, and on the 30th day of July of that year one Frank Overby, an employé of respondent, was killed in its mines. Mr. Overby's widow instituted suit against the respondent to recover damages for her husband's death, and secured a judgment for $6,000. The appellant took charge of that suit under the terms of the policy, and caused the same to be appealed, and the judgment was affirmed by this court on the 2d day of May, 1910 (144 Mo. App. 363, 128 S. W. 813). After the affirmance, the respondent negotiated a settlement with the widow, by the terms of which the judgment, which at said time amounted, with interest and costs, to a little over $7,000, was settled for the sum of $5,203.35, which was the full amount the appellant was liable for under the terms of its policy, and which amount was paid to the widow and the judgment satisfied by her assignee. This suit is instituted to recover the amount so paid, together with the sum of $1,100, which plaintiff claimed it was entitled to recover as damages and attorney's fees on account of defendant's vexatious refusal to pay the said $5,203.35. The cause was tried before the court without a jury, resulting in a judgment in favor of the respondent for the amount claimed under the terms of the policy, and $1 damages, and $250 attorney's fee. From this judgment, the appellant appealed to this court.

The appellant's first contention is that plaintiff is not entitled to recover because it violated certain conditions of the policy. The part of the policy it is claimed the plaintiff violated reads as follows: "The assured shall at all times render to the company all co-operation and assistance in his power. The assured shall not voluntarily assume any liability, nor shall the assured, without the written consent of the company previously given, incur any expense or settle any claim, nor interfere in any legal proceeding." While that suit was pending in this court, negotiations were entered into for the sale of the mining company's property in Newton county, but it was discovered that the judgment obtained by Mrs. Overby was a lien on the real estate of the company, and, notwithstanding an appeal bond had been given, the purchaser, on account of this lien, refused to pay the purchase money to the company. In addition to the judgment lien, there was a prior mortgage lien, securing an indebtedness of $6,500. The property was sold for $10,000, and the sale was consummated by the company agreeing that the $3,500, the amount of the purchase price in excess of the mortgage debt, should be deposited in a bank in Neosho to be paid to Mrs. Overby in case her judgment was affirmed. It is claimed this action on the part of the mining company was in violation of the terms of the policy above set forth, and released the appellant herein. This contention is based on the theory that, when the $3,500 was put in the bank, it caused the plaintiff in the damage suit to feel secure as to that amount of her judgment, and therefore rendered it more difficult to compromise with her than it otherwise would have been. There is no evidence that the appeal bond was not good for the amount of the judgment, or that the fact that the money was put in the bank in any wise rendered a settlement with Mrs. Overby more difficult. The purchaser was willing to take the property subject to the lien, if the amount of the equity over and above the mortgage, and to which the widow could look for the collection of her judgment, was deposited in the bank, and not paid to the mining company.

Forfeitures are not favored, and the courts will not put upon language any technical construction for the purpose of creating a forfeiture. The appellant's attorney says: "We submit that while the appeal was pending, and in view of the belief that must have existed in the mind of Overby and her attorney that plaintiff was insolvent, and the collection of her judgment was in jeopardy, defendant, under the terms of the policy, was entitled to the full use and benefit of that circumstance. Defendant had the sole right by the policy, at least at that time, to deal...