United States Casualty Co. v. Johnston Drilling Co.

• Decision Date: 12 November 1923
• Docket Number: (No. 238.)
• Parties: UNITED STATES CASUALTY CO. v. JOHNSTON DRILLING CO.
• Court: Arkansas Supreme Court

255 S.W. 890

UNITED STATES CASUALTY CO. v. JOHNSTON DRILLING CO.

(No. 238.)

Supreme Court of Arkansas.

November 12, 1923.

Rehearing Denied December 10, 1923.

Appeal from Circuit Court, Jefferson County; John W. Wade, Special Judge.

Action by the United States Casualty Company against the Johnston Drilling Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Sam M. Levine and Coy M. Nixon, both of Pine Bluff, for appellant.

Powell, Smead & Knox, of Camden, for appellee.

WOOD, J.

The appellant instituted this action against the appellee to recover the sum of $1,312.83. It alleged that this was a balance due on the premium for a policy of Employer's Liability Insurance issued by the appellant to the appellee. The appellee, in its answer, admitted the issuance of the policy and its acceptance by the appellee, but denied that it was indebted to the appellant in the specific sum claimed. It alleged by way of set-off or counterclaim that the policy of insurance set up in appellant's complaint was issued to the appellee to indemnify and protect it against loss on account of personal injuries that might be suffered by its servants and employees; that while the policy was in force, one Barker, an employee of the appellee, in the performance of his duties sustained an injury resulting in the loss of his eye; that it was necessary to provide him with hospital accommodations and nurse's attention and to furnish him with necessary funds to meet incidental expenses while he was out of employment as a result of his injury; that appellee furnished to Barker for such purposes the sum of $829.09, all of which except $50 was furnished for medical attention, nurse's attention and hospital fee. It alleged that on whatever amount might be found due the appellant, if any, should be credited the sum of $829.09, and prayed that it have judgment against appellant for that sum. The appellant replied to the counterclaim and denied all of its allegations.

At the trial the policy of insurance issued by appellant to the appellee was identified and introduced in evidence. It developed that there was no issue as to the amount of premium due by the appellee to the appellant on the policy. It was also undisputed that Barker, an employee of the appellee had been injured during his employment by the loss of an eye and that appellee had expended the sum of $739.85 for medicine and medical treatment furnished Barker, so the only issue presented was whether or not the appellant was liable under its policy to the appellee for the sum thus expended.

The policy indemnified the appellee "against loss arising or resulting from claims upon the assured for damages on account of bodily injuries accidentally suffered or alleged to have been suffered while this policy is in force by any employee or employees of the assured * * * by reason of the operation of the work of the assured." The policy contained, among other conditions, the following:

"Condition C. The assured, whenever requested by the company, shall aid in securing information and evidence, and the attendance of witnesses, and in effecting settlements, and in prosecuting appeals, but the assured shall not voluntarily assume any liability, either before or after an accident, nor shall he (without the written consent of the company previously given) incur any expense or settle any claim, except at his own cost, nor interfere in any negotiations for settlement or in any legal proceedings conducted by the company on account of any claim; except that the assured may provide at the time of the accident (and at the cost of the company) such immediate surgical relief as is imperative."

Indorsed on the policy as a "rider" thereto and expressly made a part thereof was the following:

"In consideration of the reduced premium charged for this policy, it is hereby understood and agreed that this policy shall not cover the cost of immediate surgical relief referred to in condition C, anything in the policy to the contrary notwithstanding.

"Nothing herein contained shall be held to vary, waive, alter or extend any of the terms, conditions, agreements or declarations of the policy, to which this indorsement is attached, other than as herein stated.

"This indorsement becomes effective on the 18th day of April, 1921, twelve and one minute o'clock a. m., standard time, and terminates with the termination of the policy to which it is attached."

Barker was injured in the fall of 1921. The appellant prayed the court to instruct the jury to find in its favor in the sum alleged in its complaint. The court refused its prayer, to which ruling it duly excepted. The jury returned a verdict in favor of the appellant in the sum of $572.98, being the difference between the amount claimed by the appellant and the sum of $739.85 claimed by the appellee as a set-off. Judgment was rendered for the appellant against the appellee in the sum of $572.98, from which is this...