Sweeney v. Southern Surety Company

• Decision Date: 10 July 1920
• Docket Number: 22,789
• Citation: 107 Kan. 375,191 P. 583
• Parties: WILLIAM S. ANDERSON and CHARLES SWEENEY, Appellees, v. SOUTHERN SURETY COMPANY, Appellant
• Court: Kansas Supreme Court

191 P. 583

107 Kan. 375

WILLIAM S. ANDERSON and CHARLES SWEENEY, Appellees, v. SOUTHERN SURETY COMPANY, Appellant

No. 22,789

Supreme Court of Kansas

July 10, 1920

Decided July, 1920

Appeal from Labette district court; ELMER C. CLARK, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. INSURANCE--Indemnity Insurance--Negligent Defense of Action by the Insure--Liability of Insurer. Where an insurance company insures an employer of labor against loss or damage on account of injuries sustained by his employees, takes charge of the defense in an action brought by an injured workman, and through negligence in not properly conducting the defense judgment is obtained against the employer for an amount in excess of that named in the policy, the insurance company is liable to the employer for the damages thus occasioned.

2. SAME--Action Against Insurer for Damages for Its Negligence--Unavailable Defenses. In an action brought by such an employer to recover from the insurance company the damages thus sustained, where the company could have set up as a defense in the action by the employee that he and the plaintiffs were engaged in using dynamite in a coal mine in violation of law, and that the injury to the employee was thereby occasioned, that fact cannot be set up by the insurance company as a defense.

3. SAME--Contributory Negligence of Insured. The employer is not guilty of contributory negligence where he employed an attorney to assist in the defense, who had no control over the litigation, and who only did those things he was required to do.

4. SAME--Causes of Action Stated in Petition Not Inconsistent. Causes of action based on acts of negligence alleged in a petition are not inconsistent with each other when they can stand together, when one does not defeat the other, and the truth of one does not disprove the truth of the other.

W. E Zeigler, F. S. Jackson, A. M. Etchen, all of Coffeyville, J. P. McCammon, W. J. Owen, and R. H. Davis, all of Joplin, Mo., for the appellant.

E. L. Burton, of Parsons, C. S. Denison, and John L. Kirkpatrick, both of Kansas City, Mo., for the appellees.

OPINION

MARSHALL, J.:

The defendant appeals from a judgment for damages on account of its negligence in conducting the defense in an action against the plaintiffs. Elaborate findings of fact were made by the court, a brief summary of which is as follows:

Plaintiff William S. Anderson was engaged in mining coal from a strip-pit coal mine. He obtained a policy of insurance from the Missouri Fidelity and Casualty Company, insuring the plaintiff in the sum of $ 5,000 against loss or damage on account of accidents resulting in bodily injury to any one person employed in the operation of the mine. Afterward plaintiff Charles Sweeney, with the knowledge and consent of that company, became a partner of plaintiff William S. Anderson in the operation of the coal mine, and later the defendant succeeded to the rights and obligations of the Missouri Fidelity and Casualty Company under the policy. William Henry Marshall was employed by the plaintiffs as shot-firer in their coal mine. He performed his work in the following manner: After the surface earth and stone had been removed from the coal, a hole was drilled through the coal to a depth of about twenty-six inches, into which a piece of dynamite was placed and exploded by detonation, after which a quantity of black blasting powder was poured into the hole, and that powder was exploded by ignition. Marshall was injured by an explosion of black blasting powder in a hole into which he had poured the powder after he had exploded a piece of dynamite therein. Marshall sued the plaintiffs for damages. Under the terms of the policy the defendant had the right to defend in that action and did conduct the defense. The defendant's attorneys in that action prepared the answer, but they did not plead that Marshall was using dynamite in the mine in violation of sections 6326 and 6328 of the General Statutes of 1915. Trial was had, which resulted in a verdict in favor of the plaintiff for $ 4,500. That verdict was set aside, and a new trial was granted. Before the action was again tried the plaintiff offered to compromise and settle his claim for $ 4,500, but the defendant refused to settle for that sum. The action was again tried, and resulted in a judgment for $ 8,650. That judgment was affirmed in Marshall v. Anderson, 98 Kan. 573, 158 P. 1116. The defendant paid $ 5,415.09 on that judgment; the plaintiffs paid the remainder. They then commenced this action to recover from the defendant the sum of $ 3,000 as the damages sustained by them on account of the defendant's negligence in failing to in any way set up the illegal act of Marshall in using dynamite in the coal mine, as a defense in the action brought by him, and in failing to compromise and settle the claim of Marshall for $ 4,500.

1. The petition in Marshall v. Anderson, the action out of which the present one arose, alleged that Marshall was injured by an explosion of black blasting powder in a hole in which he had just prior thereto exploded dynamite in violation of the laws of the state of Kansas. The laws referred to are sections 6326 and 6328 of the General Statutes of 1915, which are as follows:

"It shall be unlawful for any person or persons engaged in coal mining to use or cause to be used dynamite or other detonating explosives in the preparation of any blast or shot in any coal mine within the state of Kansas: Provided, however, That dynamite or other detonating explosives may be used under such rules and regulations as may be agreed upon between the employer and the employees, same to be approved by the state mine inspector. All rules, regulations and permits to use dynamite or other detonating explosives, as herein provided, shall be in writing." (§ 6326.)

"Any person or persons violating the provisions of section 1 of this act shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in any sum not exceeding twenty-five dollars." (§ 6328.)

That petition also alleged that no written rules or regulations for the use of dynamite in the mine in which Marshall was working had been agreed upon between the Anderson Coal Company and its employees, nor had any rules and regulations been approved by the state mine inspector. This court had occasion to pass on these statutes in Richards v. Coal Co., 104 Kan. 330, 179 P. 380, where this court said:

"The act applies to strip-pit coal mines.

"A shot-firer in a strip-pit coal mine comes within the provisions of the act making it unlawful for any person engaged in coal mining to use dynamite in the preparation of any blast or shot in any coal mine within the state.

"Such a shot-firer, using dynamite in the preparation of a blast in ...