69 S.E. 234 | N.C. | 1910
This action was brought on a policy of insurance to recover a loss alleged to have been sustained by the plaintiff. In October, 1907, Walter H. Briscoe was injured by falling into a sunken tub or shallow well of hot water on the land of J. H. Bridgers, in Henderson, N.C. a narrow strip of land four feet wide between the Henderson Amusement Company building or theatre and the land of the Henderson Lighting and Power Company. The well was located and placed by the amusement company for its own purposes when its theatre was erected, about one year before the accident. The well was placed touching the building and immediately under a window of the building to a room which was used as a dressing-room of the theatre. The well was under the exclusive control of the amusement company. The power company *226 had no concern, no duty and no responsibility in respect to it. (277) It was not in possession of it, and did not use it for any purpose. At the time of the accident it was covered over with loose boards. There was an open space between the strip on which the well was located and the building of the power company, which open space was the property of the power company, and is about eighteen feet wide. This space is not fenced in, but opens on Spring Street. Briscoe had been upon the open space belonging to the power company before, and had been ordered off by this company.
From Spring Street, opposite said space, the machinery or boilers or furnaces of the power company are not visible. From the well, where the accident happened, none of the machinery, furnaces or boilers are visible. Briscoe, at the time of the accident, was at the well, which is directly under the window of the amusement company, peeping in at the window, and he fell in the well and was injured. There was no evidence that Briscoe was invited to go upon the land of the Henderson Lighting and Power Company, or that he was allured, attracted or induced to go there by the machinery of this company. There is no evidence that he went on the premises in order to view the machinery, and there would have been no danger to him in viewing the machinery through the door or window. Briscoe was not even a licensee; he was a trespasser at the time of the accident. The power company owed him no duty in respect to the well. He was a youth thirteen or fourteen years old, bright, intelligent and bad. The public were in the habit of using the open space between the two buildings, and this was alleged by Briscoe in his amended complaint. Briscoe brought suit against the power company to recover damages for the injury, and this Court sustained a demurrer to his complaint and held that, according to the facts, as stated in the complaint, no legal liability of the power company to Briscoe had been alleged (
1. The defendant will indemnify the plaintiff. against loss from liability imposed by law upon the assured for damages on account of bodily injuries or death accidentally suffered while this policy is in force, by any person or persons not employed by the assured while at or about the work of the assured, described in the schedule, during the prosecution of the said work at the place or places described in the schedule, subject to the following conditions:
2. Upon the occurrence of an accident, the assured shall give immediate written notice thereof, with the fullest information obtainable at the time, to the company's home office or to the company's authorized agent.
3. 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's home office every summons or other process as soon as the same shall have been served on him, and the company, at its own cost, will defend such suit in the name and on behalf of the assured, unless the company shall elect to settle the same or to pay the assured the indemnity provided for in Condition A hereof.
4. The assured shall not voluntarily assume any liability nor shall the assured, without the written consent of the company previously given, incur any expense or settle any claim except at his own cost.
5. No action shall lie against the company to recover for any loss under this policy, unless it shall be brought by the assured for loss actually sustained and paid in money by the assured in (279) satisfaction of a judgment, after trial of the issue, nor unless such action is brought within ninety (90) days after such judgment, by a court of last resort, against the assured, has been so paid and satisfied.
The defendant moved for judgment of nonsuit upon the evidence, which was overruled and the defendant excepted. It was agreed that, subject to this exception, a jury trial should be waived, and that the court should find the facts and answer the issues in the case. This was done, and the facts, as stated herein, are selected from the findings of the court as those which are essential to a decision of the case, in the view taken of it by this Court. The Court concluded, as matters of law, that the Briscoe claim is covered by plaintiff's policy and that, by denying liability in its answer, the defendant had waived its right to notice of the Briscoe claim" and to a judgment after trial in his action. Judgment for the amount of the compromise, attorney's fees and costs ($370) was rendered for the plaintiff, and the defendant appealed.
After stating the case. The general rule of construction applied by the courts to all contracts of insurance is that while, like other contracts, they should be so construed as to give effect to the intention of the parties, yet where there exists any doubt as to that intention, it is always to be resolved strictly against the insurer and in favor of the insured. Vance on Insurance, 429. When, however, the intention is clearly stated, it should be enforced according to the will of the parties as thus expressed, for in such a case there is no room for construction. The terms of the policy in question are, we think, free from any doubt or ambiguity. The defendant undertook to indemnify against loss from the liability imposed by law upon the assured (the plaintiff), for damages on account of bodily injuries accidentally suffered by any person not employed by (280) the assured, while at or about the work of the assured and during the prosecution of the said work at the place described in the schedule. We have held, after careful consideration of all the essential facts, that the power company is not liable in damages for the injuries to Walter Briscoe, resulting from his fall in the vat. Briscoe v. PowerCompany,
The plaintiff relies upon Beef Co. v. Casualty Co.,
In Richards on Insurance section 481, the general rule is stated to be that the insured must show a liability on account of an injury covered by the policy, in order to maintain an action against the insurance company. See also Davidson v. Casualty Co.,
Even if the view suggested by the plaintiff be an equitable one, and it admits of grave doubt, we can not adopt it, as the parties have not so contracted and we can not do it for them. We have nothing to guide us but the words of a plainly expressed agreement which must be interpreted as the parties evidently intended it should be.
It is unnecessary to answer the other questions, whether the defendant waived the notice of the claim of the injured person required to be given to it, and whether the liability of the insured to such person must first be fixed by a judgment against the insured, followed by payment of the judgment, before the insured can recover of the indemnity company, or whether compliance with that provision was also waived by the company when it refused to defend.
The injury to Briscoe was not one of the kind insured against by the defendant, as he was not entitled to recover damages on account of a bodily injury accidentally suffered by him while at or about the work of the assured, during the prosecution of said work, as described in *232
the schedule annexed to the policy. The defendant was not, in law or in fact, responsible for the injury to him, even in the slightest degree, and he was not "at or about the work of the assured," within the evident meaning of those words, when he was injured. There was no causal connection between the "work" of the power company or its prosecution, and the injury to the boy. Briscoe v. Power Co.,
We are, therefore, of the opinion that the indemnitor, not being answerable for the principal loss in this case, can not be so for the subsequent damages, costs and expenses paid in the settlement of the suit between Briscoe and the plaintiff. The defendant was not bound to defend a suit upon a claim not within the terms of its policy, and especially so in the case of a groundless claim. If not required to defend, it can not be charged with the costs and expenses of a defense, or of a settlement made by the assured for its own benefit, (285) however reasonable that settlement may be. To hold otherwise, would impose upon the defendant a liability which it not only has not assumed by its contract with the assured, but which, by the very terms of the policy, is excluded therefrom. The costs and expenses incurred in defending against Briscoe's claim for damages were not the result of any legal wrong done by the power company to him for which it is indemnified, but of the claim for damages pressed with commendable zeal, but misplaced confidence, by a plaintiff without a case, which would surely have judicially appeared if the power company had not settled, but defended to the end. Plaintiff was in no danger of an adverse judgment after our decision in the Briscoe case. Briscoe achieved partial success by the weakening of the plaintiff when it should not have been dismayed by the continued prosecution of a claim, which a little more reliance upon the former decision of this Court should have convinced it was without merit.
Upon the facts found by him, the learned judge, "sitting as a jury," should have instructed himself differently as to the law and answered the second issue, "Was the said claim (of Briscoe) covered by plaintiff's policy?" in the negative, but as there is no evidence to sustain the plaintiff's cause of action, viewing the testimony in the most favorable light for him, the nonsuit should have been allowed and the action dismissed. Judgment to that effect will be entered in the court below.
Reversed.
Cited: Lowe v. Fidelity Co.,