Travelers' Ins. Co. v. Henderson Cotton Mills

• Decision Date: 25 March 1905
• Citation: 120 Ky. 218,85 S.W. 1090
• Parties: TRAVELERS' INS. CO. v. HENDERSON COTTON MILLS.
• Court: Kentucky Court of Appeals

85 S.W. 1090

120 Ky. 218

TRAVELERS' INS. CO. v. HENDERSON COTTON MILLS.

Court of Appeals of Kentucky.

March 25, 1905

Appeal from Circuit Court, Henderson County.

"To be officially reported."

Action by the Henderson Cotton Mills against the Travelers' Insurance Company on an employer's indemnity policy. From a judgment for plaintiff, defendant appeals. Affirmed.

J. A Dean and J. F. Lockett, for appellant.

Montgomery Merritt, for appellee.

HOBSON C.J.

On February 22, 1901, John Warren, an employé of the Henderson Cotton Mills, was killed; suit was brought by his administrator against it, and a judgment was recovered for $2,944.40 and costs, which was affirmed by this court. Henderson Cotton Mills v. Warren's Administrator, 70 S.W. 658, 24 Ky. Law Rep. 1030. The Henderson Cotton Mills paid the judgment, and then instituted this suit against the Travelers' Insurance Company on a policy issued to it on the 4th of April, 1900, indemnifying it for the period of one year against such losses. The policy reads as follows:

"In consideration of the warranties in the application for this policy, a copy of which is hereto attached and which is made a part of this contract, and of two hundred and ten dollars ($210.00) premium, the Travelers' Insurance Company, of Hartford, Connecticut (hereinafter called 'The Company'), does hereby agree to indemnify Henderson Cotton Mills of Henderson, county of Henderson state of Kentucky (hereinafter called 'The Assured'), for the period of twelve months beginning on the fourth day of April, 1900, at noon, and ending on the fourth day of April, 1901, at noon, standard time, at the place where this policy has been countersigned, 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 employé or employés of the assured while on duty within the factory, shop, or yards mentioned in said application, or upon the ways immediately adjacent thereto provided for the use of such employés or the public, in and during the operation of the trade or business described in the said application: subject to the following agreements, which are to be construed as conditions."

Here follow 16 conditions, the 1st, 9th, 10th, 11th, and 14th of which are as follows:

"(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 ($1,500.00), and subject to the same limit for each person, the total liability for any one accident resulting in injuries to, or in the death of, several persons is limited to ten thousand dollars ($10,000)."

"(9) 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, or settle the same unless it shall elect to pay to the assured the indemnity provided for in clause '1' of the foregoing provisions, as limited therein.

"(10) The assured shall not settle any claim, except at his own cost, nor incur any expense, nor interfere in any negotiation for settlement or in any legal proceeding without the consent of the company previously given in writing, but he may provide at the time of the accident such immediate surgical relief as is imperative. The assured when requested by the company shall aid in securing information, evidence, and the attendance of witnesses, and in effecting settlements, and in prosecuting appeals.

"(11) This policy does not cover loss from liability for injuries to, or caused wholly or in part by, any child employed by the assured contrary to law, nor to, or caused wholly or in part by, any child employed under twelve years of age where no statute restricts the age of employment."

"(14) No action shall lie against the company as respects any loss under this policy unless it shall be brought by the assured himself to reimburse him for loss actually sustained and paid by him in satisfaction of a judgment after trial of the issue. No such action shall lie unless brought within the period within which a claimant might sue the assured for damage unless at the expiry of such period there is an action pending against the assured, in which case an action may be brought against the company by the assured within thirty days after final judgment has been rendered and satisfied as above. The company does not prejudice by this clause any defenses to such action which it may be entitled to make under this policy."

The plaintiff did not allege in its petition that John Warren the person injured, was over 12...