| Mo. Ct. App. | Dec 31, 1913
This is a suit on a policy of employers’ liability insurance. Plaintiff recovered and defendant prosecutes the appeal.
The principal argument urged for a reversal of the judgment goes to the effect that the amount sued for, though paid out by plaintiff on account of an injury to one of his employees, may not be recovered in this suit on the policy, for the reason the claim was not ascertained after trial of the issue before the payment was made. Though it is clear enough that the policy imposes this as a condition precedent to the right of recovery thereon, it seems, the provision may be treated as waived by defendant in the instant case and the judgment supported on that ground.
It appears plaintiff is a contractor and builder and as such took out the insurance policy involved here. The insurance is of that character known as employers’ liability, and the policy vouchsafes indemnity to the assured, under the limitations therein prescribed and not exceeding a specified amount, against such losses as he may sustain and pay after a trial of the issue on account of injuries' received by persons in his
The instant suit proceeds for the recovery of $125, ■-a surgeon’s bill paid by plaintiff to a physician and surrgeon for treating a carpenter who was injured while in plaintiff’s employ. While erecting a building in St. Louis, a carpenter, employed by plaintiff and within the terms of the policy, fell from the building to the earth below and thereby received severe and dangerous injuries. It appears both of his arms and three .ribs were fractured. Furthermore, the carpenter, Buckner, was rendered unconscious by the fall and for ¡several days thereafter was in a dangerous condition. Plaintiff called a physician and surgeon immediately do treat and care for the injured man. The evidence reveals that Buckner’s condition was such that his fractured bones could not be set on that day and that 'considerable swelling of the parts ensued. The surgeon took immediate charge of the patient and administered forthwith temporary treatment. On the .following day, the services of an X-ray specialist were obtained by the surgeon and on that and the third day
It is suggested in the briefs, but not pressed with vigor, that plaintiff was not authorized to contract an indebtedness chargeable to defendant beyond what is known as for first aid, or in the language of the policy, “other than for imperative surgical relief at the time of an accident.” It is entirely clear that plaintiff is authorized to incur an expense chargeable to defendant under the terms of the policy for imperative surgical relief at the time of an accident, and it would seem that such imperative surgical relief involved, not only the calling of a surgeon to administer temporary relief while the man was unconscious, but involved, too, the treatment which followed during the ensuing two or three days which was administered to abate the swelling and compass the extent of the injuries through the use of the X-ray and reducing and setting the fractured bones. But be this as it may, the adjuster sent out by defendant with power to ascertain the extent of and settle the claim was certainly possessed of au
But it is said, though such be true, plaintiff is not entitled to recover here, for the reason he paid the surgeon’s bill without the written consent of the company and without requiring it to be ascertained after a trial of the issue. The policy provision seems to require this, and it is true that, though plaintiff paid the surgeon’s bill of $125, he did so without a trial of the issue first had and without the written consent of the company. Touching this matter, it will be essential to set forth and examine the character of the insurance and the language of the contract evinced by the policy. By the policy defendant company undertakes to INDEMNIFY the insured against the losses and expenses therein contemplated. Throughout, the policy appears to be one of indemnity to the insured against such damages as may be ascertained as therein required and compensated by him. Moreover, under the express provisions of the policy it is not enough that the loss or expense shall be merely paid by the insured but in express terms the policy requires such loss or expense to be ascertained against the insured £ £ after trial of the issue. ’ ’ So much of the sixth provision of the policy as is relevant here is as follows:
*565 “6. No action shall lie against the company as respects any loss or expense under this policy unless it shall be brought by the assured himself to reimburse him for loss or expense actually sustained and paid in money by him after trial of the issue, or unless payments shall have been made with the written consent of the company. ’ ’
It is, of course, important for an insurance company, with policies outstanding throughout the country, including and covering a broad field of liability, to require that such claims as it undertakes to pay shall be ascertained in some impartial manner, and it would seem to be entirely reasonable and just that ■carte blanche authority should be withheld from its patrons to obligate it by merely paying out money on claims presented. Obviously this is the spirit and intent of this provision of the policy, and it is'clear that it imposes, as a condition precedent to its liability to respond, that the insured shall not only first pay the claim before he can recover from it, but must defer the payment until after trial of the issue touching the subject-matter, unless written consent of the company to such payment be first obtained. Until such prerequisite conditions, of the policy are first complied with, the right of the insured to recover indemnity does not attach. [See Allen v. Aetna Life Ins. Co., 145 F. 881" court="3rd Cir." date_filed="1906-05-18" href="https://app.midpage.ai/document/allen-v-etna-life-ins-8760855?utm_source=webapp" opinion_id="8760855">145 Fed. 881; Connolly v. Bolster, 187 Mass. 266" court="Mass." date_filed="1905-01-06" href="https://app.midpage.ai/document/connolly-v-bolster-6428784?utm_source=webapp" opinion_id="6428784">187 Mass. 266.]
But though such be true, the provision of the policy ■above quoted is inserted for the benefit of defendant ■and, like other provisions of that character, may be waived by it. The court found the issue for plaintiff and it is our duty to sustain the judgment on any theory which may sufficiently appear in the evidence to support it, for the matter is in no wise embarrassed by instructions. There is substantial evidence tending to prove that defendant waived the condition of the policy postponing its liability to plaintiff until after a trial of the issue and treated that stipulation as one
There is no suggestion in the case that defendant sought to compromise the claim with plaintiff, but rather it appears that it recognized a liability under the policy, even though no trial of the issue was had, and arbitrarily fixed the amount at $40 and sent a check to him therefor, which, as above stated, was returned.
In this view — that is, of a waiver — the judgment should be affirmed. It is so ordered.