152 Mo. App. 332 | Mo. Ct. App. | 1911
This is an action upon an indemnity insurance policy issued by the defendant to plaintiff to indemnify it against damages which it might sustain by reason of injury to its employees. Mack S. Phelps was injured while in the employ of plaintiff,- and on October 24, 1905, recovered judgment in the circuit court of Jasper county for $7500, and costs by reason of said injury. This judgment was affirmed by the Supreme Court February 25, 1909. On April 26,1909, the plaintiff paid the Phelps judgment, and, at that time, paid the face of the judgment — $7500—and the further sum of $1575 interest thereon from date of its rendition in the circuit court to the date of payment, and $178.05 costs, then made demand upon defendant for reimbursement. On July 9, 1909, the defendant paid the plaintiff $5061.65, being the maximum liability, as it claimed, under its policy of insurance and interest thereon from the date that plaintiff paid the judgment against it. July 22, 1909, the plaintiff filed this suit, seeking- thereby to recover the in
. The questions to be decided here are, First; whether the defendant insurance company was, under its policy, liable for interest upon the Phelps judgment from the date of its rendition in the circuit court, or whether its liability for interest began on the date of the affirmance of that judgment by the Supreme Court. Second; whether or not the defendant is liable for the payment of the costs in the Phelps suit.
The policy issued by defendant to plaintiff in, this case limited its liability for injuries to one person to the sum of five thousand dollars. It will thus be seen that the recovery against plaintiff by the party injured was greater than the defendant’s liability under its policy. The provisions of the policy necessary to notice here are as follows:
The company “does hereby agree to indemnify the Conqueror Zinc & Lead Company of Joplin, the assured, for the period of twelve months, beginning on the 17th day of January, 1904, . . . subject to the following special and general agreements which are to be construed as co-ordinate, as conditions:
“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 an employee or employees of the assured,” etc.
Special Agreements.
“A. The company’s liability for an accident resulting in injuries to one person is limited to five thousand dollars.”
*337 General Agreements.
“1. The assured upon the occurrence of an accident shall give immediate written notice thereof, with the fullest information obtainable at the time, to the home office of the company at Hartford, Conn., or to its duly authorized local agent. He shall' give like notice with full particulars of any claim that may be made on account of such accident, and shall at all times render to the company all co-operation and assistance in his power.
‘‘2. 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 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 A of special agreements as limited therein.
“3. The assured shall not settle any claim except at his or its own cost, nor incur any expense,.nor interfere in any negotiations 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 asured, when requested by the company, shall aid in securing information, evidence, and the attendance of witnesses and in effecting settlements and in- prosecuting appeals.
“7. 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*338 of a judgment within sixty days from the date of such judgment and after trial of the issue.
The question as to when defendant became liable for interest depends upon when it became liable to pay the plaintiff. The judgment, having been more than the maximum liability provided for by the policy, the defendant would not be responsible for interest, even though interest might have been paid by the plaintiff, until defendants liability to plaintiff became fixed. The contention of defendant is that its liability did not become fixed until the judgment of the circuit court was affirmed by the Supreme Court; while the plaintiff contends that it became liable when the judgment was rendered by the circuit court. We must determine this question by the terms of the policy of insurance which is the contract between the parties.
There is a distinction between contracts of indemnity against loss and contracts of indemnity against liability. In the latter case the obligation of the insurance company becomes fixed when liability attaches to the insured. In the former case the insurance company does not become liable until loss has been suffered, and that means when the damages have been paid by the insured. The language of the policy in question in this case is “The company does hereby agree to indemnify against loss from common law or statutory liability,” etc.
It is further provided in the policy,- clause number seven, General Agreements, “No action p 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 within sixty days from the date of such judgment and after trial of the issue.” There is much conflict in the decisions upon the proper construction to be given to a policy of this character. ■ There are some courts of high authority which have held that under policies similar
If we are right in this position then it follows that defendant’s liability did not become fixed, under this policy, until plaintiff had paid the judgment against it. The circuit court was, therefore, right in holding that the plaintiff could not recover for interest upon this judgment for the time elapsing between the date of its rendition in the circuit court and its affirmance by the Supreme Court.
The next question as to whether defendant is liable for the costs of the suit in the Phelps case also turns upon the construction of the policy, and upon this question we find the authorities are also in conflict. It will be noted that the policy in question, under paragraph two of General Agreements provides that in
In Rumford Falls Paper Co. v. Fidelity & Casualty Co., 43 Atl. 503, a different view is taken, and in that case, under a similar policy, the company was held liable for the costs of the original suit, and, in discussing that question, this language is used. “What it will cost to defend a law suit is the amount required to pay the fees of counsel and witnesses, and further expenses involved in presenting the defense, including
Our conclusion is that the court was right in holding defendant liable for the costs in the case of Phelps v. Plaintiff. The judgment will be affirmed.