Rumford Falls Paper Co. v. Fid. & Cas. Co.

• Decision Date: 17 April 1899
• Citation: Rumford Falls Paper Co. v. Fid. & Cas. Co., 43 A. 503, 92 Me. 574 (Me. 1899)
• Parties: RUMFORD FALLS PAPER CO. v. FIDELITY & CASUALTY CO.
• Court: Maine Supreme Court

43 A. 503

92 Me. 574

RUMFORD FALLS PAPER CO.

v. FIDELITY & CASUALTY CO.

Supreme Judicial Court of Maine.

April 17, 1899.

(Official.)

Report from superior court Cumberland county.

Action by the Rumford Falls Paper Company against the Fidelity & Casualty Company. Judgment for plaintiff on report.

Argued before PETERS, C. J., and EMERY, WHITEHOUSE, WISWELL SAVAGE, and FOGLER, JJ.

W. H. Clifford, E. Verrill, and N. Clifford, for plaintiff.

N. & H. B. Cleaves and S. C. Perry, for defendant.

WHITEHOUSE, J. This is an action on a policy of insurance against "employers' liability," brought to recover of the defendant company the sum of $2,763.90; being the amount of a judgment obtained against the plaintiff company by one Angus T. Sawyer as damages for an injury sustained by him while in its employment. See Sawyer v. Paper Co., 90 Me. 354, 38 Atl. 318.

The present action comes to this court on a report of the evidence from the superior court of Cumberland county.

In the policy declared upon in the plaintiff's writ, the defendant company agrees to indemnify the plaintiff company.

"Against liability for damages on account of fatal or nonfatal injuries accidentally suffered by any employé or employés of the assured, while engaged at the places and in the occupations mentioned in the application for this policy, subject to the following agreements and conditions:

"(1) The company's liability for an accident resulting in injuries to or in the death of one person is limited to fifteen hundred dollars (1,500); and, subject to the same limit for each person, its gross liability for a casualty resulting in injuries to or the death of several persons is twenty-five thousand dollars.

"(2) The assured, upon the occurrence of an accident and also upon receiving information of a claim on account of an accident, shall give immediate notice in writing of such accident or claim, with full particulars, to the company, at its office in New York City, or to the agent, if any, who shall have countersigned this policy.

"(3) If thereafter any legal proceedings are taken against the assured to enforce a claim for damages on account of such accident, the company will defend the same at its own cost in the name and on the behalf of the assured.

"(4) The assured shall not, except at his own cost, settle any claim nor incur any expense nor interfere in any negotiations for settlement with the injured person, nor in any legal proceedings, without the consent of the company previously given in writing, but he may provide such surgical relief as may be imperative. The assured shall render to the company all reasonable aid in securing information and evidence and in effecting settlements."

The other 10 articles in the policy contain stipulations not material to be considered in determining the questions at issue between the parties to this action.

In its brief statement of special matter of defense, the defendant company avers that the assured failed to perform the obligation imposed upon it in article 4,—to render all reasonable aid in securing information and evidence for the defense of the action brought against it by Angus T. Sawyer,—and accordingly contends, in the first place, that the defendant company is exonerated from all liability to pay any part of the damages received by Sawyer; and, secondly, it contends that in any event, by the express terms of article 1 of the policy, the liability of the defendant for an accident resulting in injuries to one person is limited to $1,500.

1. Under the averment in the brief statement charging a failure on the part of the assured to "render reasonable aid in securing information and evidence" for the defense, the defendant especially complains that, during the progress of the trial of Sawyer's action against the assured in the supreme judicial court holden at Paris, the superintendent of the plaintiff company made the following statement at the hotel in the presence and hearing of the presiding justice and of several jurors constituting the panel for the trial of the cause, viz.: "We are not defending this case. This is the Fidelity & Casualty. They insure us, and they are the ones who are responsible. We wouldn't defend this case." One of the defendant's attorneys (Mr. Smythe, of New York) testifies that he was present and heard this statement, and that it was heard by the presiding justice, who was sitting at the same table with himself. It does not appear, however, that the presiding judge administered any reproof to the superintendent at the time, or that he ever gave the jury any admonition against the prejudicial effect of such a remark. It does not appear that any request was made by the defendant's attorneys that such admonition should be given to the jury, or that any reference to the matter whatever was ever made in court. It does not appear that they sought to take advantage of the incident as a ground for claiming a mistrial or a motion for a continuance, or that any objection whatever was made to the further progress of the trial. Nor does this objection appear as one of the grounds for the motion for a new trial presented to the law court. The conduct of the defendant's attorneys in this respect is calculated to suggest a doubt whether it was then understood by them that any jurors impaneled for the trial of the cause were within hearing at the time the objectionable remark is alleged to have been made by the superintendent. The remark was not necessarily a violation of the agreement to "render all reasonable aid in securing information and evidence," and, if offered simply as an indication of a hostile attitude on his part, there is no evidence that he knew that there were any jurors within hearing at the time of the remark.

It is conclusively shown by the evidence that Sawyer, the injured employé of the assured, before and after the commencement of his action, both by himself and his attorneys, informed the attorney of the defendant company, as well as the managers of the assured, that he would accept $1,000 in full settlement of his claim for damages; and it undoubtedly was the opinion of the officers of the assured that a settlement on that basis would be wise and judicious, and for the mutual benefit of the two companies. They were required, indeed, by the same stipulation in article 4 now in question, not only to "render all reasonable aid in securing information and evidence," but also "in effecting settlements." It sufficiently appears from the report of Sawyer v. Paper Co., 90 Me. 354, 38 Atl. 318, as well as from the evidence in the principal case, that the necessary "information and evidence" had all been secured long before the trial. There is no pretense that the assured concealed or withheld any information. The facts were all known. There was substantially no controversy in relation to them. The question at issue had reference rather to the appropriate inferences to be drawn from uncontroverted facts, and to the legal consequences attaching to them. It was not in violation of any stipulation in the policy for the paper company to advise and assist in effecting a settlement which it believed in good faith to be for the interest of the Insurer as well as of the insured.

But the defendant further complains that at some time before the trial of Sawyer's actions against the assured an attorney at law, who had been acting as attorney for the paper company, asked the attorneys for the plaintiff, Sawyer, if they would be willing to remit all above $1,500, and hold the paper company harmless in case the verdict should exceed that amount, provided the paper company would assist the plaintiff in the prosecution of his suit. This remarkable suggestion appears to have been inconsiderately made in ignorance of the stipulations in the policy, and does not appear to have been made by authority of the paper company. In any event, the "suggestion" was not adopted by Sawyer's attorneys, no such arrangement was in fact ever made, and the attorney who suggested it does not appear to have been present at the trial, or to have had any...