152 F. 961 | 6th Cir. | 1907
This is an action brought by the defendant in error, hereinafter called the “Telephone Company” against the plaintiff in error, hereinafter called the “Casualty Company,” upon a policy of insurance;—
“against loss from common law or statutory liability for damages on account of bodily injuries fatal or nonfatal, accidentally suffered by any person or persons not employed by the assured at or about any of tbe work of the assured described in tbe schedule indorsed hereon, caused by the negligence of the assured, and resulting from the work described in said schedule, and against the expense of defending any suit for such damages.”
While the policy was in force, arid on or about February 8, 1901, Thomas Ware, an employe of the Telephone Company was killed at the city of Owensboro, Ky., by coming in contact with a telephone wire resting upon the wire of the Electric Light Company in said city, heavily charged with electricity, and the provisions of the policy became operative, as follows:
“(1) The assured, upon the occurrence of an accident, shall give immediate notice thereof in writing, with full particulars to the home oflice of the company at New York City, or its duly authorized agent. He shall give like notice, with full particulars, of any claim which may be made on account of such accident.
“(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, immediate no*962 tice thereof shall be given to the company, and the company shall defend such suit in the name and on behalf of the assured, or settle the same.
“(3) The assured shall not settle any claim, except at his own cost, nor incur any exi>ense, nor interfere with any negotiation for settlement or in any legal proceeding without the consent of the company previously given, in writiug,, but he may provide at the time of the áccident ’ such immediate surgical relief as is imperative. The assured, when requested by the company, shall aid in securing information and evidence and in effecting settlements, and in case the company calls for the- attendance of any employs or employes as witnesses at inquests and in suits, the assured will secure his or their attendance, making no charge for his or their loss of time.”
Notice of the accident was given by the Telephone Company to the Casualty Company. Suit was brought by the administrator of Ware against the Telephone Company" for damages arising from his death under a statute of Kentucky, and notice of that was also given to the Casualty Company, and that company thereupon employed counsel to defend said suit in the name and on behalf of the Telephone Company, and upon the trial judgment was rendered against the latter company for $12,500 and costs. An appeal from said judgment was prosecuted to the Court of Appeals of the state of Kentucky, and final judgment was rendered against the Telephone Company by said Court of Appeals of Kentúcky for the sum of $12,500 with'interest at 6 per cent, per annum and 10 per cent, damages .additional. The total judgment of the Court of Appeals of Kentucky,, including interest, damages, and costs, amounted to $15,447.26, which was paid by the Telephone Company on November 25, 1903. •
Of the expenses of the suit on the trial and the appeal the Casualty Company, paid $989.45. The Telephone Company paid the costs of the plaintiff in that suit and other costs and expenses to an amount in all, which, upon the proportion of $5,000 to the entire judgment appealed' from, as directed by the court below, resulted in á balance in favor of the Telephone Company of $1,167.98. The judgment was for $5,000 plus this balance of $1,167.98 wit'1 the interest thereon from the date of the judgment of the trial court in the Ware’ Case. Upon the trial, which was before the court without a jury and upon an agreed statement of facts, the Casualty Company contended that its liability under a limitation in the policy did not extend beyond the sum of $5,000, and that the judgment should be limited accordingly, without enlargement from the costs and expenses which the Telephone Company had incurred by reason of the suit. And it further contended that "the $5,000 should be reduced by the $989.45, which it had paid of the expenses of the suit, as above stated. Both of these contentions were overruled bjr the court below, and the plaintiff in error.renews them here.
■The policy contained the following provision:
“(A) The company’s liability as aforesaid arising from an accident resulting-in injuries to or in the death, of one person is limited to five thousand dollars ($5.000.00), and subject to the same limit for each person the total liability arising from any one accident resulting in injuries to or in the death of any number of" persons is limited to ten thousand dollars ($10,000.00).”
And the Casualty Company contends that this limitation .'includes all the-consequences of the accident, such as the expenses óf a law
,Tt makes no difference that ultimately a larger liability was established against the Telephone Company than the limit of insurance, for the Casualty Company reserved the right to make the defense without regard to the amount claimed by the party injured by the accident, and the Telephone Company was as completely excluded in a case where the amount which might be recovered was as much as $25,000 as where it might not exceed $5,000. By its agreement it was ex
The judgment must be affirmed, with costs.