Myton v. Fidelity & Casualty Co.

• Decision Date: 05 March 1906
• Citation: 117 Mo. App. 442,92 S.W. 1149
• Court: Missouri Court of Appeals
• Parties: MYTON v. FIDELITY & CASUALTY CO. OF NEW YORK.

92 S.W. 1149

117 Mo. App. 442

MYTON v. FIDELITY & CASUALTY CO. OF NEW YORK.

Kansas City Court of Appeals. Missouri.

March 5, 1906.

Rehearing Denied April 2, 1906.

1. INSURANCE — EMPLOYERS' LIABILITY — ATTACHMENT COSTS.

Under an employers' liability insurance policy, where the insurer appeared for the insured and defended an action against her in which the only jurisdiction otherwise acquired by the court was by virtue of an invalid attachment, the insurer waived the objection that the liability for attachment costs was not included within the terms of the policy.

2. SAME — SETTLEMENT OF SUIT.

Under an employers' liability insurance policy, where the insurer appeared for the insured in an action against her, in which the only jurisdiction otherwise acquired by the court was by virtue of an attachment, and afterwards made a settlement with the plaintiff under which judgment was entered for a certain sum and costs, the insured became bound for payment of attachment costs included in the judgment, though the attachment was invalid.

Appeal from Circuit Court, Jasper County; Howard Gray, Judge.

Action by Mary P. Myton against the Fidelity & Casualty Company of New York. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

H. W. Currey and Frank L. Forlow, for appellant. A. E. Spencer and McAntire & Scott, for respondent.

JOHNSON, J.

Action upon a policy of insurance. The material facts are not disputed, and may be stated as follows:

On October 2, 1899, defendant issued the policy under consideration to a Mr. Sully, the owner of certain mines in Galena, Cherokee county; Kan. Sully, in December following, sold the property to plaintiff and assigned the policy to her with the consent of defendant. The undertaking of the insurer, as disclosed by the terms of the policy, was to indemnify the insured "against loss from common-law or statutory liability for damages on account of bodily injuries, fatal or nonfatal, accidentally suffered within the period of this policy by any employé or employés of the assured while on duty at the places and in the occupation mentioned in the schedule, hereinafter given, in and during the continuance of the work described in the said schedule."

Among the provisions of the policy, these are material to the present inquiry: "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 company every summons or other process as soon as the same shall have been served on him, and the company will at its own cost defend against such proceeding in the name and on behalf of the assured (and pay) the indemnity or settle the same, unless it shall elect to pay to the insured the indemnity provided for in clause A of special agreements, as limited therein." "The assured shall not settle any claim except at his own cost, nor incur any expense, nor interfere with any negotiation for settlement, or in any legal proceeding, without the consent of the company previously given in writing. * * * The assured, when requested by the company, shall aid in securing information, evidence and the attendance of witnesses, and in effecting settlements and in prosecuting appeals." "No action shall lie against the company as respects any loss under this 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," etc.

On May 3, 1900, while the policy was in force, a laborer named Ross, employed in the mine by plaintiff, was fatally injured. Shortly after his death, his father and mother, B. H. and Sarah Ross, brought suit in the district court of Cherokee county, Kan., a court of competent jurisdiction, against the assured, alleging in the petition filed that the death of their son was the direct result of the negligence of his said employer. The deceased was an unmarried minor and, under the Kansas law, a right of action such as that pleaded vested in his parents. The defendant there (plaintiff here) was a nonresident of the state of Kansas, and the plaintiffs in that suit, at the commencement thereof, procured the issuance of a writ of attachment and caused the same to be levied by the sheriff upon a large amount of personal property owned by the defendant, Myton, and used in the operation of the said mine. The Kansas law authorized an attachment in aid of an action of this character, but required as a step preliminary thereto the filing of an attachment affidavit containing, among other requisite averments, the statement of one or more statutory grounds. Nonresidence in the state is one of such grounds. An affidavit was filed, but it failed to allege any ground for attachment. Nevertheless, the writ was issued, and defendant Myton's property was seized and held thereunder by the sheriff until the final termination of that suit. The only service upon the defendant Myton was by publication. The insurance company (defendant here) was notified of the bringing of the Kansas suit, and, conceding that the liability, if any, was one covered by the policy, immediately assumed entire charge of the defense. It took no steps to contest the jurisdiction of the Kansas court on account of the defective affidavit, and filed no motion or plea in the attachment proceeding, but answered to the merits of the principal suit in the name of the defendant, Myton, and thereby entered her personal appearance. After the suit had been pending for more than a year, the insurance company entered into a stipulation with the plaintiffs therein for a settlement of the controversy, the terms of which appear in the judgment, which the parties had entered by consent, on October 17, 1901. It is as follows: "Now, on this day, this cause came on for trial, the plaintiffs herein appeared by their attorneys * * * and the defendants herein by * * * their attorneys, and now a jury being waived, the trial of this cause was submitted to the court; and, thereupon, as per stipulation, in open court, it was agreed that the plaintiffs should have judgment against the defendants for the sum of $700.00 and the costs of suit. It is therefore considered, ordered, adjudged and decreed that the plaintiffs, B. H. Ross and Sarah E. Ross, do have and recover of and from the defendant * * * Mary Myton the sum of seven hundred dollars and the costs of this suit, taxed at $1,201.90, and that the attachment lien herein issued by the clerk of this court upon the 11th day of October, 1906, be preserved and continued, and that an order of sale issue, for the sale of the attached property herein, after a period of thirty days from this date;...