Thacher v. Aetna Acc. & Liability Co. of Hartford, Conn.

• Decision Date: 24 February 1923
• Docket Number: 5927.
• Citation: 287 F. 484
• Parties: THACHER v. AETNA ACCIDENT & LIABILITY CO., OF HARTFORD, CONN.
• Court: U.S. Court of Appeals — Eighth Circuit

287 F. 484

THACHER v. AETNA ACCIDENT & LIABILITY CO., OF HARTFORD, CONN.

No. 5927.

United States Court of Appeals, Eighth Circuit.

February 24, 1923

W. B Thompson, of St. Louis, Mo. (Ford W. Thompson, of St. Louis Mo., on the brief), for plaintiff in error.

T. M Pierce and Samuel H. Liberman, both of St. Louis, Mo (Chauncey H. Clarke, of St. Louis, Mo., on the brief), for defendant in error.

Before SANBORN and KENYON, Circuit Judges, and POLLOCK, District judge.

KENYON Circuit Judge.

Parties will be designated as in the lower court.

On March 26, 1921, plaintiff filed in the District Court of the United States for the Eastern District of Missouri an amended petition, asking judgment against defendant for the sum of $4,301.25, with interest thereon from the 16th day of January, 1920, at the rate of 6 per cent., and costs. The cause of action was based on a policy, No. C.A. 57710 issued by the AEtna Accident & Liability Company, of Hartford, Conn., which policy agreed to indemnify the assured, subject to the provisions and conditions of the same, against loss and expense arising or resulting from claims upon the assured for damages on account of bodily injuries or death accidentally suffered or alleged to have been suffered by any person or persons by reason of the ownership, maintenance, and use of plaintiff's automobile. The claims of the amended petition were as follows:

That on July 13, 1915, while said policy was in force, the automobile of plaintiff, operated by his daughter, Theodora Thacher, struck and killed one Charles W. Bright, who was walking on a public street in the city of St. Louis. Claim for damage was made by Esther J. Bright, mother of said Charles W. Bright, and defendant was given notice of said accident and claim.

That suit was brought by Ester J. Bright, who had been appointed administratrix of the estate of Charles W. Bright, against both Theodora Thacher and plaintiff, Arthur Thacher.

That answers were filed on behalf of these parties with the consent and knowledge of defendant herein, and that defendant consented that the defendants in that suit might defend the suit in the trial court. This trial resulted in judgment against Arthur Thacher and Theodora Thacher for the sum of $7,500.

That this case was appealed to the St. Louis Court of Appeals, where, on November 5, 1919, it was affirmed as to Theodora Thacher, and reversed as to Arthur Thacher.

That notice of the appeal to the St. Louis Court of Appeals was given to defendant, and then for the first time it appeared in the St. Louis Court of Appeals by its attorneys in behalf of Theodora Thacher and Arthur Thacher in defense of said suit.

That after the rendition of the judgment of the St. Louis Court of Appeals, and after the mandate of the same had been sent to the circuit court of the city of St. Louis, plaintiff notified defendant that under and in pursuance of the provisions of said policy said defendant was liable to him for any judgment rendered against his daughter, Theodora Thacher, acting as his agent, and was liable for the payment of said judgment rendered in favor of Esther J. Bright, administratrix, to the extent of $5,000.

That plaintiff also notified defendant that he could settle and compromise said judgment for $3,000 and costs of suit, amounting to $201.25, and that he proposed to accept such offer made by the administratrix of the Charles W. Bright estate, and pay said amount and hold defendant responsible for such payment under its said policy. Demand was made on said defendant to pay said sums, but defendant failed and refused to pay the same, and disclaimed and repudiated any liability under said policy for the said accident caused by the plaintiff's automobile, on the ground that the plaintiff was not liable, under the circumstances of the accident, for his daughter's acts.

That on the 16th day of January, 1920, notwithstanding such refusal on the part of the defendant, the plaintiff paid to Esther J. Bright, administratrix, the sum of $3,000 in settlement of the judgment against his daughter, and the sum of $201.25 costs, and took an assignment of the judgment.

That on the 22d day of January, 1920, plaintiff notified defendant that he would enter satisfaction of said judgment and hold defendant liable, and that plaintiff in error did enter satisfaction of said judgment on said day. The amount so paid is the amount for which plaintiff now asks judgment against defendant.

The foregoing constitute the main allegations of the amended petition on which the case was presented. A demurrer to this amended petition was filed on the 29th day of March, 1921, and sustained on the 27th day of May, 1921, the general ground of the demurrer being that the petition did not state facts sufficient to constitute a cause of action. The action of the court in sustaining his demurrer is the question before us.

We set forth certain parts of the insurance policy material to the issues here, as follows:

'Policy No. C.A. 57710.

'The AEtna Accident & Liability Company Combination Automobile Policy. Accident & Liability Company, of Hartford, Connecticut (called the company),

'In consideration of the premium herein provided, the AEtna does hereby agree to indemnify the assured described in the warranties hereof, subject to the provisions and conditions set forth herein: * * * Against loss and/or expense arising or resulting from claims upon the assured for damages on account of bodily injuries and/or death accidentally suffered, or alleged to have been suffered, by any person or persons, by reason of the ownership, maintenance and/or use of the automobile described in the warranties hereof (including carrying of goods thereon and the loading and unloading thereof), provided such accidents or alleged accidents occur within the period covered by this policy, and provided further that:

'H. If suit is brought against the assured to enforce a claim for damages covered by this policy he shall immediately forward to 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. The assured, whenever requested by the company, shall aid in effecting settlements, securing information and evidence, the attendance of witnesses and in prosecuting appeals, but the assured shall not voluntarily assume any liability or interfere in any negotiations for settlement, or in any legal proceeding, or incur any expense, or settle any claim, except at his own cost, without the written consent of the company previously given, except that the assured may provide at the company's expense such immediate surgical relief as is imperative at the time of the accident.

'J. No action shall lie against the company to recover for any loss and/or expense covered by this policy arising or resulting from claims upon the assured for damages unless it shall be brought by the assured for loss and/or expense actually sustained and paid in money by him after actual trial of the issue, nor unless such action is brought within two years after payment of such loss and/or expense; nor for any other loss or damage covered by this policy unless action is brought within two years after the occurrence causing the loss or damage.'

I. At the inception of this opinion we may suggest that, while the demurrer admits the facts well pleaded, it does not admit mere conclusions of the pleader or the correctness of the pleader's construction of the written instrument, to wit, the insurance policy which is set out in haec verba in the petition. Dillion v. Barnard et al., 21 Wall. (88 U.S.) 430, 22 L.Ed. 673; Samuel Bonnell, Jr., Appellant, v.

Chester Griswold et al., Respondents, 68 N.Y. 294; Donovan v. Boeck, 217 Mo. 70, 116 S.W. 543.

Plaintiff's claim now is that under the allegations of the amended petition his daughter was his agent in operating the automobile; that the indemnity provided by the policy covered, not only results of his acts, but likewise those of his agent, whether negligent or not; that he was liable to third persons for the daughter's acts, and consequently that defendant was liable to him. And this notwithstanding the decision of the St. Louis Court of Appeals in the case of Esther J. Bright, Administratrix of the Estate of Charles W. Bright, Deceased, Respondent, v. Theodora Thacher and Arthur Thacher, Appellants, 202 Mo.App. 301, 215 S.W. 788, holding that said Arthur Thacher, plaintiff in error here, was not liable in this very matter, but that liability attached to his daughter, Theodora Thacher, by reason of her negligence in the driving and management of the automobile. The question of agency was of necessity involved in that case. Plaintiff escaped liability there on the theory that he was not responsible for his daughter's act resulting in the death of Charles W. Bright. Here insistence is made that he is liable for the very same act; such insistence being made necessary undoubtedly by the fact that he cannot recover in any event against defendant here unless there is liability upon him for the acts of his daughter resulting in the damage and loss. These theories are ingenious, and plaintiff suggests in his argument that one of the doctrines advanced involves a novel application of the rule of respondeat superior and may perhaps be regarded as staining that rule unduly. We think it does.

We are dealing in this case, not with the rights or claims of third parties arising out of a tort, but with a contract and its construction. The policy in this case is one of indemnity and not liability. Luger v. Windell, 116 Wash. 375, 199 P. 760; Ford v. AEtna Life Ins. Co., 70 Wash. 29 126 P. 69; Allen v. AEtna...