New Amsterdam Cas. Co. v. Cumberland Tel. & Tel. Co.

• Decision Date: 21 March 1907
• Docket Number: 1,593.
• Citation: 152 F. 961
• Parties: NEW AMSTERDAM CASUALTY CO. v. CUMBERLAND TELEPHONE & TELEGRAPH CO.
• Court: U.S. Court of Appeals — Sixth Circuit

152 F. 961

NEW AMSTERDAM CASUALTY CO. v. CUMBERLAND TELEPHONE & TELEGRAPH CO.

No. 1,593.

United States Court of Appeals, Sixth Circuit.

March 21, 1907

Clarence T. Boyd, for plaintiff in error.

Wm. L Cranbery, for defendant in error.

Before SEVERENS and RICHARDS, Circuit Judges, and COCHRAN, District judge.

SEVERENS Circuit Judge.

This is an action brought by the defendant in error, hereinafter called the 'Telephone Company' against the plaintiff in error, hereinafter called the 'Casualty Company,' upon a policy of insurance--

'against loss from common law or statutory liability for damages on account of bodily injuries fatal or nonfatal, accidentally suffered by any person or persons not employed by the assured at or about any of the work of the assured described in the schedule indorsed hereon, caused by the negligence of the assured, and resulting from the work described in said schedule, and against the expense of defending any suit for such damages.'

While the policy was in force, and on or about February 8, 1901 Thomas Ware, an employe of the Telephone Company was killed at the city of Owensboro, Ky., by coming in contact with a telephone wire resting upon the wire of the Electric Light Company in said city, heavily charged with electricity, and the provisions of the policy became operative, as follows:

'(1) The assured, upon the occurrence of an accident, shall give immediate notice thereof in writing, with full particulars to the home office of the company at New York City, or its duly authorized agent. He shall give like notice, with full particulars, of any claim which may be made on account of such accident.

'(2) If thereafter any suit is brought against the assured to enforce a claim for damages on account of an accident covered by this policy, immediate notice thereof shall be given to the company, and the company shall defend such suit in the name and on behalf of the assured, or settle the same.

'(3) 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, but he may provide at the time of the accident such immediate surgical relief as is imperative. The assured, when requested by the company, shall aid in securing information and evidence and in effecting settlements, and in case the company calls for the attendance of any employe or employes as witnesses at inquests and in suits, the assured will secure his or their attendance, making no charge for his or their loss of time.'

Notice of the accident was given by the Telephone Company to the Casualty Company. Suit was brought by the administrator of Ware against the Telephone Company for damages arising from his death under a statute of Kentucky, and notice of that was also given to the Casualty Company, and that company thereupon employed counsel to defend said suit in the name and on behalf of the Telephone Company, and upon the trial judgment was rendered against the latter company for $12,500 and costs. An appeal from said judgment was prosecuted to the Court of Appeals of the state of Kentucky, and final judgment was rendered against the Telephone Company by said Court of Appeals of Kentucky for the sum of $12,500 with interest at 6 per cent. per annum and 10 per cent. damages additional. The total judgment of the Court of Appeals of Kentucky, including interest, damages, and costs, amounted to $15,447.26, which was paid by the Telephone Company on November 25, 1903.

Of the expenses of the suit on the trial and the appeal the Casualty Company paid $989.45. The Telephone Company paid the costs of the plaintiff in that suit and other costs and expenses to an amount in all, which, upon the proportion of $5,000 to the entire judgment appealed from,...