Sandoval Zinc Co. v. New Amsterdam Cas. Co.

• Decision Date: 18 June 1908
• Citation: 85 N.E. 219,235 Ill. 306
• Parties: SANDOVAL ZINC CO. v. NEW AMSTERDAM CASUALTY CO.
• Court: Illinois Supreme Court

235 Ill. 306

85 N.E. 219

SANDOVAL ZINC CO.

v.NEW AMSTERDAM CASUALTY CO.

Supreme Court of Illinois.

June 18, 1908.

Appeal from Appellate Court, Fourth District, on Appeal from Circuit Court, Marion County; S. L. Dwight, Judge.

Action by the Sandoval Zinc Company against the New Amsterdam Casualty Company. From a judgment of the Appellate Court affirming a judgment for plaintiff, defendant appeals. Affirmed.Linn R. Brokaw and C. E. Wise (C. P. Ellerbe, of counsel), for appellant.

June C. Smith, for appellee.

This is an appeal by the New Amsterdam Casualty Company from a judgment of the Appellate Court for the Fourth District affirming a judgment for the sum of $2,500 obtained by the Sandoval Zinc Company, appellee, against appellant, in the circuit court of Marion county, in a suit on a policy of insurance, commonly called an employer's liability policy.

The declaration, as amended, alleges that on September 10, 1905, appellant, in consideration of $180 paid to it by appellee, issued its policy of insurance, in which it agreed to indemnify appellee against loss from liability imposed by law upon appellee for damages on account of bodily injuries or death accidentally suffered by any employé or employés of appellee while employed by it at its plant at Sandoval, Ill.; that said policy covered the period from September 10, 1905, to September 10, 1906. The policy of insurance is set out in full in the declaration, and contains, among others, the following provisions:

‘Condition B. Upon the occurrence of an accident the assured shall give immediate written notice thereof, with the fullest information obtainable at the time, to the home office of the company in New York City, or to its duly 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 C. If thereafter any suit is brought against the assured to enforce a claim for damages by reason of an accident covered by this policy and arising from a liability covered thereby, 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 such suit in the name and on behalf of the assured. * * *

‘Condition D. 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 its own costs, or interfere in any negotiations for settlement or in any legal proceeding. * * *

‘Condition M. No condition or provision of this policy shall be waived or altered by any one unless by indorsement hereon signed by an officer of the company at the home office, nor shall notice to any agent, nor shall knowledge possessed by any agent or by any other person, be held to effect a waiver or change in this contract or in any part of it. * * *

‘Condition O. The liability of the company for loss from an accident resulting in bodily injudies to or in the death of one person, only, is limited to twenty-five hundred dollars ($2,500). * * *’

The declaration then alleges that on the 18th day of November, 1905, while the said policy was in full force, one Henry Hale, who was employed by appellee at its plant at Sandoval, Ill., and who was one of its employés covered by said contract of insurance, sustained a bodily injury, for which appellee became liable for damages under the law; that by reason of such injury the said Hale on December 21, 1905, brought suit in the circuit court of Marion county against appellee to recover damages for the said injuries; that appellant, knowing that appellee had not complied with conditions B and C of said policy of insurance, after said suit was brought, waived said notice and began negotiations for a settlement, and assumed and took upon itself the management, control, and defense of the said suit on behalf of appellee; that, by reason of appellant having waived the giving of the required notice and by assuming and undertaking the defense of said suit, appellee was prohibited by condition D of said policy from interfering with any negotiations for settlement or legal proceedings in the cause; that on January 11, 1906, after a trial of the issues, a final judgment was rendered in said suit against appellee in favor of Hale for the sum of $2,500 and costs of suit. The declaration further alleges that on January 26, 1906, appellant appeared in said court in said cause in the name of appellee, and excepted to the judgment rendered by the court, and prayed an appeal to the Appellate Court for the Fourth District of Illinois, which was allowed upon the filing of a bond in the sum of $3,000 within 30 days and a bill of exceptions within 60 days; that on February 23, 1906, and within 30 days, at the instance and request of appellant, appellee caused to be filed in the office of the clerk of said court an appeal bond, which was approved by the court; alleges that under the conditions of said policy, after appellant had waived said notice, as aforesaid, and assumed the defense of said suit, it became the duty of appellant either to pay the said judgment or to prosecute and perfect said appeal to said Appellate Court or to indemnify and save appellee from paying said judgment, yet the appellant failed and neglected so to do; that afterwards, at the August term of said Appellate Court, on the motion of said Hale, said appeal was dismissed, and a judgment rendered in his favor for the sum of $2,500, together with 5 per cent. damages and costs of suit; that afterwards, on September 11, 1906, said Hale commenced suit in the circuit court of Marion county against appellee on its appeal bond to recover said judgment, damages, and costs, and on October 1, 1906, a judgment was rendered in said suit against appellee, in favor of Hale, for the sum of $2,733.33, which judgment was satisfied by appellee on December 1, 1906; that appellant, though often requested, has not repaid to appellee said sum of money or any part thereof, but has refused so to do, to the damage of appellee, etc. To the declaration appellant interposed the general issue and filed a number of special pleas. When...