New Amsterdam Cas. Co. v. East Tenn. Tel. Co.

• Decision Date: 21 July 1905
• Docket Number: 1,364.
• Citation: 139 F. 602
• Parties: NEW AMSTERDAM CASUALTY CO. v. EAST TENNESSEE TELEPHONE CO. et al.
• Court: U.S. Court of Appeals — Sixth Circuit

139 F. 602

NEW AMSTERDAM CASUALTY CO. v. EAST TENNESSEE TELEPHONE CO. et al.

No. 1,364.

United States Court of Appeals, Sixth Circuit.

July 21, 1905

This is an action to recover under a policy of indemnity insurance. The New Amsterdam Casualty Company (hereafter styled the 'Insurance Company ') undertook to indemnify the Cumberland Telephone Company against loss from liability for damages on account of bodily injuries caused by its negligence, liability in any one instance not to exceed $5,000. During the currency of this contract an action was brought at Frankfort, Ky., against the telephone company by Miss Hedger, a citizen of Kentucky, resident at Frankfort, to recover $25,000 damages on account of injuries sustained through the alleged negligent conduct of the telephone company's business in that city. The casualty company was notified both of the happening of the accident and of the bringing of the suit, and at once employed attorneys, and undertook to defend the case, as it was bound to do. Investigation convinced both the telephone and insurance companies that the injury sustained by the plaintiff in the case was very serious, and the case indefensible, and that a judgment in excess of the liability of the insurance company to the telephone company was very probable. In this condition of affairs, and just as the case was about to be brought to trial, a settlement was reached, by which her expenses of litigation, including her counsel fees and court costs, and the sum of $8,000, was to be received in full satisfaction, and her suit dismissed. A check or draft for $10,085.25 was thereupon given to Judge Ira Julian, the attorney of the insurance company at Frankfort, engaged in defending the suit, and paid over by him to Miss Hedger or her attorneys in full settlement for the amount agreed upon. Upon receipt of this sum she dismissed her suit. Thereupon the telephone company demanded that the insurance company should pay to it the amount of $5,000 and $17.10, one-half the costs of suit, in accordance with the terms of the contract of indemnity. This the insurance company refused to do, denying its liability to pay anything whatever. Thereupon this suit was brought, and the plaintiff recovered a judgment for the sums sued for, with interest. This writ of error has been sued out to reverse this judgment.

C. T Boyd, for plaintiff in error.

J. J Vertrees, for defendants in error.

Before LURTON and SEVERENS, Circuit Judges, and THOMPSON, District Judge.

LURTON Circuit Judge (after stating the facts).

The insurance company at the close of all the evidence requested the court to instruct the jury to return a verdict for it. This the court refused, and an exception has been saved. The insurance company then requested a number of special charges based upon certain provisions of the policy. Most of these were denied, and error is assigned. The case was then submitted to the jury upon a charge not excepted to in any matter now relied upon. This charge, in effect, instructed the jury that the plaintiff would be entitled to recover the amount sued for if they should find that the insurance company and Miss Hedger had agreed upon a sum to be paid in settlement of her claim against the telephone company, and that the telephone company had assented to the terms of settlement, and had paid the money, at the instance of those acting for the insurance company, necessary to carry out the settlement. The question as to whether the persons assuming to represent the insurance company in the settlement made with Miss Hedger had authority to act for it in settling, or whether the plaintiffs were authorized to assume that they had the authority they assumed to have, were questions of fact, in respect to which there was conflicting evidence; and these questions were submitted to the jury upon a charge which, in this aspect of the case, was not excepted to. Upon this issue the jury have found, as we must assume for the purpose of the present hearing, in favor of the contention of the plaintiff. The insurance company, upon the other hand contended that the case must turn upon certain provisions of the policy. Upon this insistence they bottomed a motion for a peremptory instruction. This being denied, the same matter was again presented in certain requests for special charges, which the court also denied. Exceptions were duly taken to the action of the court, and upon these exceptions the assignments of error have been predicated. The character of the requests denied is sufficiently indicated by the motion for a peremptory instruction, the grounds of that motion having been reduced to writing. If that motion was properly denied, the special...