Murch Bros. Const. Co. v. Fidelity & Casualty Co.

• Decision Date: 06 April 1915
• Docket Number: No. 13948.,13948.
• Citation: 190 Mo. App. 490,176 S.W. 399
• Parties: MURCH BROS. CONST. CO. v. FIDELITY & CASUALTY CO. OF NEW YORK.
• Court: Missouri Court of Appeals

176 S.W. 399

190 Mo. App. 490

MURCH BROS. CONST. CO. v. FIDELITY & CASUALTY CO. OF NEW YORK.

No. 13948.

St. Louis Court of Appeals, Missouri.

April 6, 1915.

On Motion for Rehearing, May 18, 1915.

Appeal from St. Louis Circuit Court; Wm. T. Jones, Judge.

Action by the Murch Bros. Construction Company against the Fidelity & Casualty Company of New York. Judgment for plaintiff, and defendant appeals. Affirmed.

One Eugene W. Butts (the name also spelled Butz), brought his action against Murch Brothers Construction Company, a corporation, hereafter referred to as the Construction Company, to the October, 1903, term of the circuit court of the city of St. Louis. The petition in that case, after alleging that Butz, while in the employment of that company, fell through the girders of a building on the third story to the basement and sustained injuries described, charged the negligence thus:

"And the plaintiff avers that the defendant negligently failed to have the girders or joists on the third floor, and above the second floor of said building covered with board, or other suitable material as said building progressed so as to sufficiently protect workmen and this plaintiff from falling through such girders or joists, and sustaining injury thereby, as required by section 165 of the Revised Ordinances of the city of St. Louis, which violation of said ordinance was the direct cause of plaintiff's injury as aforesaid.

"And plaintiff further avers that the defendant, was further negligent in providing such place for him to work, in the discharge of the duties of his employment, without having said girders or joists covered to prevent him from falling through said girders and sustaining injury thereby, which negligence of the defendant directly contributed to cause plaintiff's said injuries."

Averring that in consequence of the injuries so sustained, he had been permanently crippled and disabled, Butz, the plaintiff in that case, laid his damages at $15,000, for which he demanded judgment. It appears that the Construction Company, defendant in that case, held what is called "an employer's liability policy," issued to it by the Fidelity & Casualty Company of New York, hereafter referred to as the Insurance Company, or Casualty Company, which policy was in force at the date of the accident and insured the Construction Company against loss from common law or statutory liability for damages on account of bodily injuries or death, suffered or sustained within the period of the policy, by any employé or employés a the Construction Company, while on duty at St. Louis and engaged in the work of the Construction Company as carpenters and laborers. The maximum amount of the liability for injury or death to a single employé was $2,500. It is further provided that the policy does not cover loss from liability "for injuries occasioned by reason of the failure of the assured to observe any local ordinance of which he has knowledge." Among the general agreements in the policy are these: That the assured, upon the occurrence of any accident, shall give immediate written notice thereof, with the fullest information obtainable at the time to the insuring company, and shall also give notice with full particulars of any claim that may be made on account of the accident, and shall at all times render to the insurer all co-operation and assistance in its power in and about the settlement or defense of the claim, it being provided that if thereafter any suit is brought against the assured to enforce a claim for damages "on account of an accident covered by this policy," the assured shall immediately forward to the home office of the insurer any summons or process as soon as it shall have been served on it "and the company will at its own cost defend against such proceeding in the name and on behalf of the assured, or settle the same, unless it shall elect to pay to the assured the indemnity provided (here $2,500), in Clause A of Special Agreement as limited therein." The policy further provided that the assured "shall not settle any claim except at his own cost, nor incur any expense, nor interfere in any negotiation for settlement or in any legal proceeding, without the consent of the company previously given in writing; but he may provide at the time of the accident such immediate surgical relief as is imperative." It was further provided that no action would lie against the company as respects any loss under the policy, unless it shall be brought by the assured himself to reimburse him for loss actually sustained and paid by him in satisfaction of a judgment within 60 days from the date of such judgment and after " trial of the issue. Notified of the accident and of the suit, the Fidelity & Casualty Company, in the name of the Murch Brothers Construction Company, took up the defense of this action through its own attorney, Percy Werner, Esq., of St. Louis, wio appears then to have been the sole attorney for the defendant in that case, Amos R. Taylor, Esq., representing Butz through the whole litigation.

The answer upon which the case was tried at this first trial, sighed by Mr. Werner, after admitting certain formal matters, and admitting that plaintiff Butz was in its employ as a laborer on the third floor of the building, and that he fell therefrom and received certain injuries, denies each and every other allegation in the petition. Further answering, it set up assumption of risk and contributory negligence by Butz.

It appears that after the institution of this action, and prior to its first trial, Mr. Werner, as attorney for the Casualty Company, and having his office in St. Louis, on October 7, 1903, wrote the Construction Company a letter, in which, referring to the failure of Mr. Murch, an officer of the Construction Company, to meet him with witnesses, writes:

"In this connection, permit me to advise you here, as I have your Mr. Murch personally, that in the event of your liability in this case being predicated upon your violation of the ordinance referred to in the petition, the Fidelity & Casualty Company of New York, which I represent in this connection, will reserve the right to disclaim any and all liability to you for such judgment and its action in undertaking the defense of this case at your request and at its own expense shall not be considered as a waiver of such "right."

At this first trial, Butz, the plaintiff, took an involuntary nonsuit and appealing to the Supreme Court that judgment was set aside and the cause remanded for a new trial. See Butz v. Murch Brothers Construction Co., 199 Mo. 279, 97 S. W. 895. The opinion in that case was rendered by the Supreme Court on November 21, 1906. Mr. Werner was the sole attorney for the Construction Company in that court.

On or about December 26, 1906, Mr. Werner wrote to the Construction Company that he had a letter from the general attorney of the Insurance Company, the contents of which he would like to discuss at as early a date as possible with Mr. Murch, the president of the Construction Company. It appears that Mr. Murch called on Mr. Werner, who showed him the letter he had received from the general attorney of the Insurance Company, that letter dated' December 22, 1906, in which the general attorney suggested to Mr. Werner that he take up the Butz Case with the Construction Company and call the attention of Mr. Murch, president of that company, "to the danger and also to our reservation of rights and the form of our policy and ascertain from him how much he is willing to pay. Please advise him that while we will continue the defense we see no reason why we should contribute any considerable amount because there seems to have been clearly a violation of our policy provisions on his part in failing to comply with this ordinance. Also suggest to him that he should have his attorney take up the matter with you in view of its importance."

At this conference between Mr. Werner and Mr. Murch, which took place about the 27th of December, 1906, in St. Louis, where both had their offices, Mr. Werner advised Mr. Murch that the Construction Company had better get its own attorney to look after its interests in the case "because the evidence seemed to show there was a violation of the ordinance." It appears that Seneca N. Taylor, Esq., was then selected by the Construction Company as its attorney, to be associated with Mr. Werner in the defense of the case. On the 21st of January, 1907, Mr. Werner wrote the Construction Company that the case of Butz against that company was set for trial for the 11th of February following, and asked that the Construction Company see its attorney, Mr. Seneca N. Taylor, with reference to procuring the attendance of the necessary witnesses at that trial. That second trial of the case came on, as we see by referring to our files, on February 14, 1907, Mr. Werner and Mr. Seneca N. Taylor appearing as counsel for defendant Construction Company. That trial, the second one, resulted in a verdict in favor of Butz for $3,000, judgment following. The defendant in that case, the Construction Company, thereupon filed its motion for a new trial. On March 1, 1907, Mr. Werner wrote a letter to the Construction Company, in which, after referring to the judgment for $3,000, which had been obtained against the Construction Company by Butz and in which a motion fur a new trial wag then pending, wrote:

"I beg to advise that the Fidelity & Casualty Company of New York, which company I have represented in connection with this litigation, writes me through its general attorney, that it has decided at this time to withdraw from further participation in the defense of this case, inasmuch as this judgment is based upon the sole issue raised by the pleadings in the case, as to whether or not your company was at the time of the accident guilty of a violation of the ordinance of the city of St. Louis, requiring you to keep all floors above the second floor...