Royle Mining Company v. The Fidelity and Casualty Company of New York
| Decision Date | 24 June 1907 |
| Parties | ROYLE MINING COMPANY, Appellant, v. THE FIDELITY AND CASUALTY COMPANY OF NEW YORK, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Jasper Circuit Court.--Hon. Hugh Dabbs, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
McAntire & Scott for appellant.
(1) The appellant is bound by the actions of its attorney, Frank L Forlow, in the case of Nancy McDaniels v. Mining Co.; Molten v. Booker, 115 Mass. 36; Bonifield v Thorpe, 71 F. 924. (2) That the insurance company having full knowledge and full information of the character of said action, after entering upon the defense thereof and electing to assume its liability under the insurance policy as an indemnitor and protector of the plaintiff, should defend said action and maintain complete control and charge of the defense of said action until its final termination, and then when the judgment has been rendered therein against the assured, to deny for the first time its liability to the assured to indemnify it for the payment of such judgment, is contrary to the first principles of justice. Davis v. Wakelee, 156 U.S. Sup. 689; Sturdivant v. Huters, 87 Mo.App. 540; Insurance Co. v. Cravens, 69 Mo. 72; Buchanan v. Smith, 75 Mo. 463; K. C. M. & B. Co. v. Railway, 151 Mo. 390; St. Joseph v. Railway, 116 Mo. 636; Allen v. Hickey, 156 Mo. 59. (3) The objection that a liability is not within the terms of a policy of insurance may be waived; and where the insurer undertakes the defense of an action, brought by the injured person against the insured, with the full information of the character of the action, it will be deemed to have waived the objection that the liability was not within the terms of the insurance policy. Myton v. Fidelity and Casualty Co., 117 Mo.App. 453; 11 Am. and Eng. Ency. of Law, 13; Cement Co. v. Insurance Co., 11 A.D. 411; Roby v. Insurance Co., 120 N.Y. 510; Fuller v. Casualty Co., 94 Mo.App. 490; Davis v. Wakelee, 156 U.S. 680; Riley v. Insurance Co., 117 Mo.App. 229; Polk v. Insurance Co., 114 Mo.App. 514; Lafogel v. Insurance Co., 43 Mo.App. 518; Williams v. Santa Fe, 153 Mo. 519; Finke v. Insurance Co., 66 Mo.App. 513; Trippe v. Provident Society, 140 N.Y. 23; McNally v. Insurance Co., 137 N.Y. 389; Titus v. Glen Falls Co., 81 N. Y. App. 410. (4) The contention of the defendant herein in the lower court that it could not waive the provisions of clause "B," because public policy forbade the defendant to waive or condone the violation of a law, is not founded upon reason or authority. Cement Co. v. Insurance Co., 11 A.D. 411; People v. Buddensick, 4 N. Y. Cr. 230; People v. Melins, 1 N. Y. Cr. 39; Turner v. Insurance Co., 16 F. 454; Hinckley v. Insurance Co., 140 Mass. 47; 29 Am. and Eng. Ency. Law, 1070. (5) The main clause of the insurance policy expressed the main purpose of the contract. Clause "B," however, is repugnant to the prior clause which expresses the main purpose of the contract. When two clauses of a contract are in conflict, the first governs rather than the last. Bean v. Ins. Co., 111 Tenn. 186, 78 S.W. 104; Bank v. Wilkin, 95 Wis. 111; Greenbay v. Hewitt, 59 Wis. 96; Hartong v. Witte, 59 Wis. 285; 2 Parsons on Contracts, 513; 2 Blackstone's Commentaries, p. 381; Chitty on Contracts, 11 Am. Ed. 128; Strauss v. Wanamaker, 175 Pa. 213; Cement Co. v. Insurance Co., 11 A.D. 411; Bank v. Spaulding, 9 N.Y. 62.
Percy Werner for respondent; F. L. Forlow and H. W. Currey of counsel.
(1) Neither a waiver nor an estoppel is shown by the record. Cement Co. v. Insurance Co., 162 N.Y. 399, overruling on this point the decision of the appellate division (11 A.D. 411), which is cited by appellant. (2) A contract to insure against the consequences of a violation of law would be illegal and void; and a provision in a policy excepting losses arising from illegal acts of the insured cannot be waived. Russell v. DeGrand, 15 Mass. 35 (); Kelly v. Insurance Co., 97 Mass. 288 (); Pollard v. Insurance Co., 63 Miss. 244 (). Johnson v. Insurance Co., 127 Mass. 555, and Lawrence v. National Insurance Co., 127 Mass. 557 (); Boardman v. Insurance Co., 8 Cush. (Mass.) 586. A contract as to a matter forbidden by law is always void, and cannot be enforced. Rice v. Bank, 98 Mo.App. 699; Downing v. Ringer, 7 Mo. 585; Stock Co. v. Land & Cattle Co., 138 Mo. 406; Ehrhardt v. Robertson, 78 Mo.App. 409. (3) The exception contained in clause b is not repugnant to the prior part of the policy. Gray v. McDonald, 104 Mo. 311; Hennessy v. Brewing Co., 145 Mo. 112; McGinnis v. Car & F. Co., 174 Mo. 229. Respondent not only had the right, but it was in duty bound, to restrict its promise of indemnity to the consequences of acts which were not forbidden by the statute. Fuller v. Fidelity & Casuality Co., 94 Mo.App. 490, 494; Coal Co. v. Fidelity & Casualty Co., 130 F. 958; Goodwillie v. London G. & A. Co., 108 Wisc. 207; Insurance Co. v. Henderson, 69 F. 768; St. Louis D. B. & P. Co. v. Maryland (U. S. S. C.), 26 Sup. 400.
Action on a policy of insurance. At the conclusion of the evidence introduced by plaintiff, the court peremptorily instructed the jury to return a verdict for defendant, and plaintiff, compelled thereto took a nonsuit with leave, and after ineffectually moving that it be set aside and a new trial granted, brought the case here by appeal. It appears from the evidence that defendant, on December 15, 1902, issued to plaintiff a policy to indemnify it "against loss from common law or statutory liability for damages on account of bodily injuries fatal or non-fatal accidentally suffered within the period of this policy by any employee or employees of the assured while on duty at the places and in the occupations mentioned in the schedule hereinafter given, in and during the continuance of the work described in the said schedule." The foregoing quotation embodies the obligation of the insurer as expressed on the face of the policy. "Special agreements" follow, among which is one providing that "this policy does not cover loss from liability . . . for injuries occasioned by reason of the failure of the assured to observe any statute affecting the safety of persons." The policy concludes with a number of "general agreements," among them the following: "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 assured the indemnity provided for in clause "A" of special agreements as limited therein." (The clause referred to limits the insurer's liability to fifteen-hundred dollars for an accident resulting in the death of one person.)
A zinc mine operated by plaintiff in Jasper county was the business covered by the policy. On March 5, 1903, while the policy was in force, a miner named Marvin McDaniels, employed by plaintiff in the mine, was killed in one of the drifts by falling material. He was unmarried and childless. Shortly after his death, his mother brought an action against plaintiff for damages sustained by her on account of his death. The cause of action pleaded in the petition is based on negligence and the specific act of negligence averred appears in this excerpt from the petition: "That the falling of said earth and rock was due directly to the failure of defendant to furnish sufficient supply of timbers when required to be used as props so that the workmen in said drift might at all times be able properly to secure the said workings from caving in and to the failure of defendant to send such prop timber down into the ground when required to be used as aforesaid, and that the death of said Marvin McDaniels was due directly to the failure of defendants to furnish such prop timbers when they were required as aforesaid."
The trial of that action resulted in favor of the plaintiff therein, who recovered a judgment against plaintiff here (defendant there) in the sum of one thousand dollars. An appeal was prosecuted to this court where the judgment was affirmed. [McDaniels v. Mining Co., 110 Mo.App. 706, 85 S.W 679.] We refer to the reported opinion for a full statement of the facts on which the judgment was sustained. After the mandate of this court was issued, plaintiff paid the judgment and costs in full on execution, amounting in all to $ 1,259.70, and in the present action seeks reimbursement from defendant for the amount so expended. The defense interposed is founded on the stipulation in the special agreement exempting defendant from liability "for injuries occasioned by reason of the failure of the assured to observe any statute affecting the safety of persons," and it is alleged in the answer that "the said judgment recited and set out in plaintiff's petition was recovered by the said Nancy McDaniels, and said judgment was based and predicated upon the violation by the plaintiff of ...
To continue reading
Request your trial