Most v. Massachusetts Bonding & Ins. Co.

• Decision Date: 16 June 1917
• Docket Number: No. 2015.,2015.
• Citation: 196 S.W. 1064
• Court: Missouri Court of Appeals
• Parties: MOST v. MASSACHUSETTS BONDING & INS. CO. et al.

196 S.W. 1064

MOST v. MASSACHUSETTS BONDING & INS. CO. et al.

No. 2015.

Springfield Court of Appeals. Missouri.

June 16, 1917.

Rehearing Denied July 24, 1917.

Appeal from Circuit Court, Iron County; E. M. Dearing, Judge.

Suit by Margaret Most against the Massachusetts Bonding & Insurance Company and another. Suit dismissed as to defendant Goebel Construction Company, and judgment for defendant Insurance Company, and plaintiff appeals. Affirmed.

Bartley & Douglass and Joseph A. Wright, all of St. Louis, for appellant. Leahy, Saunders & Barth, of St. Louis, for respondents.

COX, P. J.

The husband of Margaret Most was killed by accident while in the employ of the Goebel Construction Company, at a time when there was in force an employers' liability policy issued by the Massachusetts Bonding & Insurance Company to the Goebel Construction Company. Appellant sued the Goebel Construction Company and recovered judgment, and, failing to collect this judgment on account of the insolvency of the Goebel Construction Company, brought this suit seeking to hold the insurance company liable to her, and asking that judgment be rendered in her favor against the insurance company for the amount due on her judgment against the Goebel Construction Company. On motion the suit was dismissed as to the Goebel Construction Company, and the case proceeded against the insurance company. At the close of plaintiff's testimony a demurrer thereto was sustained, judgment for defendant entered, and plaintiff appealed.

The insurance policy which is made the basis of this action contains what is known as the "no action" clause. This clause provides that:

"No action shall lie against the company to recover for any loss or expense under this policy unless it shall be brought by the assured for loss or expense incurred and paid in money by the assured after trial of the issue. * * *"

It also required the assured in case of accident to give notice to the insurer and the insurer agreed to defend, at its own cost, any suit for damages that might be covered by this policy. In this case it did defend the suit of plaintiff against the Goebel Construction Company, but did not give appeal bond when the case was appealed. There was evidence at the trial that the insurance company usually provided appeal bonds in cases appealed when the assured was solvent, but did not do so if the assured was insolvent.

There are two questions involved in this case: First. Was the policy involved an indemnity policy only, or was it a general liability policy? Second. If it is an indemnity policy only, was the "no action" clause therein waived?

The courts of this state following the great weight of authority in other jurisdictions have so often construed policies similar to this one to be indemnity policies that we deem it unnecessary at this time to reopen the discussion of that question, but on the authority of those cases hold that this policy is an indemnity policy. Conqueror Zinc & Lead Co. v. Ætna Life Ins. Co., 152 Mo. App. 332, 133 S. W. 156; Realty Co. v. Insurance Co., 179 Mo. App. 123, 136, 137, 161 S. W. 624; Dunham v. Casualty Co., 179 Mo. App. 558, 565, 162 S. W. 728. By this is meant that by the terms of the policy no action could be maintained thereon by any person except to indemnify for money actually paid, and hence neither the insured nor any other person could maintain an action thereon until after the judgment against the Goebel Construction Company had been paid, and since that was not done, that ends this case.

Appellant contends, however, that the provisions of this policy providing that the insurance company will, at its own expense, conduct the defense of a suit against the insured and the fact that it did assume control of the defense of the suit of plaintiff against the insured, and when that case was appealed failed to give appeal bond operated as a waiver of the "no action" clause, and converted this policy into a liability policy, and in support of that contention cites Sanders v. Frankfort Ins. Co., 72 N. H. 485, 57 Atl. 655, 101 Am. St. Rep. 688; Patterson v. Adan, 119 Minn. 308, 138 N. W. 281, 48 L. R. A. (N. S.) 184; Anna Davies v. Maryland Casualty Co., 89 Wash. 571, 154 Pac. 1116, 155 Pac. 1035, L. R. A. 1916D, 395, 398.

We think, however, that the reasoning of these cases on that question is not sound. The two provisions of the policy are not inconsistent,...