Rochester Mining Co. v. Maryland Casualty Co.

• Decision Date: 02 May 1910
• Citation: 143 Mo. App. 555,128 S.W. 204
• Parties: ROCHESTER MINING CO. v. MARYLAND CASUALTY CO.
• Court: Missouri Court of Appeals

128 S.W. 204

143 Mo. App. 555

ROCHESTER MINING CO. v. MARYLAND CASUALTY CO.

Springfield Court of Appeals. Missouri.

May 2, 1910.

INSURANCE (§ 514) — EMPLOYERS' LIABILITY POLICY — RIGHT OF ACTION BY INSURED.

Defendant issued to plaintiff an employer's liability indemnity policy, not only permitting, but requiring, defendant to conduct the defense of any action against plaintiff for injury to an employé; requiring plaintiff, whenever requested by defendant, to aid in securing evidence, and the attendance of witnesses and in effecting settlements, and in prosecuting appeals; prohibiting plaintiff from voluntarily assuming any liability or incurring any expense or interfering with any legal proceedings without defendant's written consent; and prohibiting any action by plaintiff against defendant on the bond till any judgment against plaintiff for injury to an employé had been affirmed by a court of last resort, and had been paid by plaintiff. Held, that it was the duty of defendant in an action against plaintiff for injury to an employé to furnish an appeal bond, and having failed to do so, or to notify a plaintiff to do so in time to stay the judgment, and so having forced plaintiff to pay it, defendant waived the right to have plaintiff, before suing on the bond, wait till determination of the appeal.

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

Action by the Rochester Mining Company against the Maryland Casualty Company. Judgment for plaintiff. Defendant appeals. Affirmed.

This action grows out of the following state of facts: The defendant issued to plaintiff what is known as an employer's liability indemnity policy of insurance, by which it agreed to indemnify plaintiff during the period of time from December 31, 1906, to December 31, 1907, against loss from the liability imposed by law upon the assured, meaning the plaintiff, for damages on account of bodily injuries or death accidentally suffered while this policy is in force by any employé or employés of the assured while within the factory, shop, or yard described in the schedule, etc. This policy contains the following conditions:

"Condition A. The company's liability for loss from an accident resulting in bodily injuries to, or in the death of, one person, is limited to five thousand ($5,000.00) dollars, and, subject to the same limit for each person, the company's total liability for loss from any one accident resulting in bodily injuries to or in the death of more than one person is limited to ten thousand ($10,000.00) dollars."

"Condition C. Upon the occurrence of the accident the assured shall give immediate written notice thereof, with the fullest information obtainable at the time to the company's home office or to the company's authorized agent. If a claim is made on account of such accident the assured shall give like notice thereof with full particulars. The assured shall at all times render to the company all co-operation and assistance in his power.

"Condition D. 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 company's home office 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 such suit in the name and on behalf of the assured, unless the company shall elect to settle the same or to pay the assured the indemnity provided for in condition `A' hereof.

"Condition E. The assured shall not voluntarily assume any liability, nor shall the assured, without the written consent of the company previously given, incur any expense or settle any claim, except at his own cost, or interfere in any negotiation for settlement, or in any legal proceeding, except that the assured may provide at the time of the accident such immediate surgical relief as is imperative. Whenever requested by the company, the assured shall aid in securing information and evidence and the attendance of witnesses, and in effecting settlements and prosecuting appeals.

"Condition F. No action shall lie against the company to recover for any loss under this policy, unless it shall be brought by the assured for loss actually sustained and paid in money by the assured in satisfaction of a judgment after trial of the issue; nor unless such action is brought within ninety (90) days after such judgment by a court of last resort against the assured has been so paid and satisfied. The company does not prejudice by this condition any defenses to such action it may be entitled to make under this policy.

"Condition G. In case of payment of loss under this policy, the company shall be subrogated to all rights, to the amount of such payment, of the assured against any person or corporation, as respects such loss, and the assured shall execute all papers required and shall co-operate with the company to secure to the company such rights."

During the life of this policy an employé of the plaintiff, viz., W. Gibson, was killed, and afterward his widow, Martha Gibson, brought suit in the circuit court of Jasper county at the June term, 1907, and recovered judgment against this plaintiff for the sum of $5,000. When this suit was brought, plaintiff, under the terms of the policy, forwarded the summons to the defendant, insurance company, and the insurance company undertook the defense of the action, and after verdict and judgment the insurance company filed a motion for new trial, made the affidavit for appeal, and, as plaintiff's evidence in this case discloses, undertook to furnish the appeal bond. The attorney for the insurance company notified the plaintiff that they would be asked by the insurance company to sign the appeal bond, and also an application to a surety company to have them act as surety upon the appeal bond, and furnished the plaintiff the blanks for that purpose. They were executed by plaintiff and returned to the attorney for the insurance company, and the plaintiff in this case relied upon the insurance company to furnish the appeal bond, and had no knowledge that the insurance company would not furnish it until the last day which had been allowed by order of the court for filing the same. It was then too late for this plaintiff to file the bond, and hence there was no supersedeas staying execution pending the appeal. An execution was issued upon the judgment, and this plaintiff was compelled to pay the same. After having paid this judgment, this suit was brought against the insurance company to recover back money so paid, and the facts as above stated were pleaded in plaintiff's petition. The...