*1 Casualty Georgia Swanson $35,000 sum in on excess Avbole opinion that are of tbe excessive. be deemed must damages which fixes a maximuhi measure instruction An disclosing any allow, may without reason jury Avhy which the amount figure named, the particular at maximum has fixed the the court implication that the-court is jury a clear of the to minds carries amount warrants assessment evidence opinion that the many' injuries, where of the personal specified. In an action pecuni- intangible, the extent of the damages where are elements of conjectural sympathy and where necessarily less ary more or loss is especially is harmful. Some always an instruction operates, such giving of such an instruc- hold that day this no doubt court will In verdict, reversible is error. tion, if followed an excessive declaring that the error precedents meantime we follow the old circuit judgment court is can be cured a remittitur. days ten enter within affirmed, respondent -here .a on condition original -judg- as the date of $50,000 remittitur the sum of and the cause remanded. ment; judgment is reversed otherwise, the J., All concur, Graves, absent. except Doing Business Partners, L. Swanson,
W. O. Swanson and F. . Company Casualty Georgia Brothers, Appellants One, October 1926. Division Employee Injury to of Another: Final 1. INDEMNITY INSURANCE: indemnifying Judgment: insurance Indirect Claim. Under expense agreed pay builders, or the insurer “to loss wherein favor damages arising of from claims the assured for account assured,” accidentally by any employee bodily injuries suffered of the judgment against pay a must the amount of a final rendered the insurer railroad in favor accidentally employee injuréd its he who while employees, a rail members of crew of railroad furnished other engine assured, operating crane, also a road to the locomotive railroad, building by being furnished the construction of assured ’ railroad, engine helpers, and crane for the request for the use of said furnished agreement pay of the assured and under that the assured was to pay w-ages helpers; of the crane the insurer injured although judgment against sued and recovered liable although employee, precedent a condition the railroad its judgment policy by upon any a final that “in the event of claim'covered being against pay rendered will satisfy judgment” judgment and no was ever and the rendered having indemnify assured; agreed and the assured. .to the railroad to having damages required payj should extent the the necessary judgment, assured it was not that the claim’ of railroad .the may be reduced to in order that the assured recover his agreement the insurer. was “to the loss insurer accidentally resulting the bodily injuries by any employee of to assured,” brought it is immaterial whether the home directly, indirectly through the assured or comes the assured the medium railroad, case, finally: in either respond must assured damages, indemnify the insurer must him to of- extent his loss. .the .. Term, Vol. Compen- Employee: Compensation Damages: Workmen’s 2. -: contemplates Kansas sation Act of Law. The Workmen’s pro- that visions by for made under to workman shall be governed only employer elected when have to be both *2 employee it; it, accepted sued where and and the railroad had not damages. bodily injuries, considered in his favor is to be agrees pay indemnifying policy by And “to an insurance which the insurer damages resulting upon on account the loss of from claims the assured for bodily injuries accidentally by employee assured” anv of the suffered general only compensation coverage, is one of which one covers paid by act, although said which the under contains another clause agrees pay hos- insurer pital “to and furnish the medical and by Law;” required and if the services the Workmen’s agreed pay wages him, employee assured to of lent to the railroad indemnify by employee damages recovered railroad for .bodily judgment, entitled, injuries, is under and has said the assured general coverage clause, be indemnified to the extent of his loss. Employee “employee 3. -: Who Is of as- of Assured? The words indemnifying policy sured” used in a of the insurance clause agrees pay upon insurer “to from assured for claims damages bodily injuries by any employee on account of the suffered mean, assured, any person assured” ployed upon em- as between the insurer and designated directly indirectly, policy, work either wages pays premium. a whose the assured In the here persons upon wages sued on include all whose assured was re- quired pay premium engaged doing a designated the work in the policy, sense, employees employees whether assured in a direct doing person engaged pursuance another work the assured in a assured, employer. contract the assured between other If the such erecting of railroad, paid wages employees a a house for a railroad, helpers building were lent who assured as house, agreeement wages, an that the assured was to their and the paying premium upon insurer such a knew the assured was helpers investigating accepted premium, and after the facts such helpers of thém the insurer must damages. bodily “employees assured,” injuries were of the and for to one indemnify the assured his amount of 4; Estoppel: PLEADING: reply denying Cause Action. A defendant’s right position allegations to take a inconsistent with the is petition attempt estoppel. assured, to create a cause of action Where the suing damages casualty company a indemnifying on a the assured bodily injuries employee assured, alleges petition his employee in was that a certain workman anwas assured accidentally injured engaged designated while in work in the 'and" defendant in its answer denies that the workman was an assured, alleges the protection he if he was under the compensation law, workmen’s alleging reply in his facts intended estopped show- that defendant to set defenses, such does not seek to create a estoppel. cause of action Reply: Estoppel. reply DEPARTURE: A which is' consistent with the -petition and whose substance its conduct and position estopped replying assumed it is pleaded defenses, departure. is not- a ' Corpus Juris-Cye. Estoppel, J., 258, p. 1247, References: 21 C. Section Insurance, Liability .40 J., 14, n. New. n. p. 1061, 2; 36 C. p. 1062, Section n. 4; 51, p. .1079, 22; 52, p. 1080, 34; Section n. n. p. Section Section 58; p. 1097, Pleading, Cyc., n. p. 259, n. 62. 31 n. 56. Georgia Casualty 1009 Hall, Judge. Jackson Circuit Court.—Hon. Willard P. Appeal and remanded. Reversed
Grover, Tipton Mosman, Rogers ap- <&Graves and Buzard for & pellants.
.. (1)
are entitled
construction of the
them,
one,
possible,
insurance most favorable to
such
not to
indemnity. Cunningham
Co.,
defeat the claim to
v. Union Cas.
613;
315 Mo.—64. Term, 315.
1010
Yol.
1202; Greeley
Bk.,
Provident Sav.
103
212;
v.
Mo.
Curtis v.
1237,
M2;
Co.,
Hartman v.
192
App. 271,
Mo.
Railroad
Moore, 162
Mo.
Penney
Penney
&
v.
182
148;
Kramer,
755;W.
W.
S.
182 S.
Wool-
Dyer
627;
Co., 202 S. W.
v.
Ins. Co.,
Am.
Home Ins.
211 Mo.
folk v.
Milling
Co.,
524;
&
v. Fire
Mining
Pauley
Co.
276 Mo.
476;
Ins.
App.
340;
261 W.
Harland
Ins. Co.,
S.
v.
192 Mo.
Co.,
App.
v. Assurance
Philadelphia
Co.,
Co. v.
Cas.
32 R.
246.
(4)
Const.
I.
198; Humes
King
against the Santa
Fe,
plain-
claim which
The
pay, was covered
the terms of
required
tiffs
injuries
claim which
resulted
reason that
Surety
App.
200 Mo.
Co.,
Harnden v. Southern
employee.
tiff’s
900;
v.
Fidelity
Co.,
&
Co.
Southern News
101 W.
Cas.
S.
162;
Fidelity
Co.,
&
126 N.
Supp. 555,
Cas.
Y.
affirmed 206
v.
N.
Creem
Co.,
712;
F.
201 N.
733;
Supp.
v. U. S. & G.
Y.
Lamkin
Black
Y.
Corp.,
v. Ocean A. G.
172 N.
&
175
Railroad
C.
Mountain
Maryland
Co.,
(5)
v.
Cas.
74
159.
566; Kibler
Wash.
The
N. C.
held
of Kansas
case
that “the
Supreme Court
employer
all
Brothers were
one
and Swanson
the cir-
’’
having pleaded
decision,
and the defendant
cumstances,
bound
277;
77
v. Assur.
Henry Woods,
Corp.,
Mo.
Bennett
v.
255
it.
(6)
defendant assumed control of the
S.
1076.
The
defense of
W.
judgment.
Strong
and is therefore bound
case
269
295;
Stone,
334;
62 Mo.
State v.
Mo.
Co.,
Ins.
State v.
Phoenix
(7)
437;
Chicago, Wall.
Robins v.
The Work-
Coste, Mo.
Law' of Kansas is not a
Compensation
action,
defense
men’s
subject
R.
King w'as not
to the act.
S. Kan.
(a)
because:
sec.
Co.,
39;
Ray
Nat. Gas.
Ok.
44-508;
v. Oklahoma
Harris
Com.
(b)
does not limit
Co.,
coverage
Henry S.
whole,
considered as a
and when
should be
The
(1)
unambiguous
parties
and the intention
is clear.
is done
189;
94
Co., Mo.
ex
Fire Ins.
State
rel. Ins. Co.
Imperial
v.
Strauss
any liability
did not
(2) The
cover
LINDSAY, C . At the close by defendant that under gave the instruction offered court cause, the recover; where plaintiffs could and the evidence pleadings involuntary nonsuit, and the case is here took an upon plaintiffs overruling the motion to set aside order appeal their nonsuit. petition building contractors, and their plaintiffs were May 5, 1916, by the defendant policies two issued on founded *5 designated upon in the first count company. policy The declared indemnify plain- the Policy, made to Workmen’s as a injuries bodily damage for sustained against from claims tiffs loss or designated a Public Lia- by as plaintiff’s employees. second, The against indemnity plaintiffs loss bility Policy, provided and for [April Term, Vol. Court oe bodily on account of damage injuries by claims suffered by by employed plaintiffs, operations reason of the persons engaged. The petition were plaintiffs second count of the plaintiffs, and the issues by- appeal was dismissed here are arising terms of the first and upon upon the mentioned those attending the circumstances transaction. in- the other Defendant petition of the the second count and the policy evidence troduced upon. therein sued giving action, occurrence rise the plain- the of the the
At engaged contractors, were tiffs, independent the erection aof City, Kansas, Topeka the Atchison, for & building at Arkansas Santa between Company. The contract them and the railway Railroad Fe plaintiffs indemnify should company provided the com- damage upon against any loss or suffered claims for per- pany injuries anyone by reason operations sustained sonal building, plaintiffs gave construction of the and the a plaintiffs surety that effect. This contract entered into bond to after the sued In the upon. course of construction, the execution a required engine, the a plaintiffs crane, services locomotive engine and operate the crane for the purpose crew of men to and a heavy moving adjusting engine, certain trusses. An and employees, helpers, railway engineer and four furnished plaintiffs, upon request upon agree- and railway company, for plaintiffs a rental -were use of the crane ment men wages of the sent pay the during engaged were mentioned, the time rendering purpose service. December, 1916, while day operate 16th the men sent to theOn being directed engine and crane one the plaintiffs, crew, through King, injured, a member of the neg- E. one G. against did make plain- ligence of February, brought against 18th of suit but, about the tiffs, injuries him, on account sustained which, appeal, judgment, upon was affirmed the Su- recovered Topeka (King Atchison, & Santa Kansas Fe Court of Rail- preme 373). railway company paid Co., 108 Kan. road it, and received demanded recovered judgment, interest repayment of the amount of costs. tiffs standing upon suit, here plaintiffs then instituted this The’ first designated petition, based count first compensation policy. count sets workmen’s execu- pleads by terms defendant insured tion loss reason of dam- claims by any accidentally bodily injuries ages arising against any expense plaintiffs,, *6 Casualty Georgia bodily in- damages of upon tbe account plaintiffs claims on force, by any em- during time was juries suffered tbe tbe at time alleged King that was the ployee of It then the said alleged injury the to of employee plaintiffs of and the occurrence made, plain- injury, a his claim was King, that, and result of said, compelled pay to as a tiffs, they and that result of they asked May did $10,761.51, the sum of recovery and for the judgment penalty, also sum, for that for a pay the same. attorney’s of an to fee, of defendant for vexatious refusal (b) denial; that (a) general Defendant’s a answer injuries, of his brought against railway company on account suit (cid:127) such, and as railway company, claiming of employee to be of affirmance that the judgment, pleaded recovered and defendant adjudicada of is res judgment by of Kansas Supreme Court of (e) special that issue; a denial that said such em- if he found plaintiffs, but, that with the averment of Kansas Compensation Act the State ployee, of the Workmen’s plaintiffs; plaintiffs that recovery right controls his of King, E. accepted act, and G. before provisions had said of the give accept provisions, which injury his had not its elected alleged employee plaintiffs of remedy; King, an exclusive that injury working of Kansas, time his resident of recovery plain- right of plaintiffs and his Kansas, sole Compensation Act and therefore tiffs was the Workmen’s under case; “A” (d) paragraph tiffs that of cannot recover in this provisions policy, with other upon, sued construed obligation final judgment until after could to the defendant attach by King against and that no such final plaintiff, obtained give obtained; plaintiffs failed to (e) was ever notice of the injury policy. King, provided said answer in sub- provisions of the pleaded stance and Kansas Com- reference Supreme pensation Court of Kan- Law certain decisions construing sas the law. plaintiff’s was, general denial; next, reply first, an averment pay-roll
that the was based on the entire plaintiffs; plaintiffs the defendant a premium, amount plaintiffs paid included and was based for the accepted King; that defendant services of said retained the right thereby deny premium, and had waived said King question. plaintiffs was an at the Plaintiffs pleaded timely given notice that due and next defendant King; had that defendant actual thereof, notice charge claim; thereafter assumed full and denied any right claim, thereby or to settle the interfere, waived respect right provision “C” of the claim that to notice, Term, Missouri, Vol. averred further complied with. The was not defend- accident; that happening notified the defendant of the rela- investigation charge claim, ant took full knowledge full and with plaintiff’s work, tionship King to policy to duty of its circumstances, question raised no *7 pro- they were plaintiffs that protect and assured plaintiffs, any indemnify them fully tected, and that defendant would and never claim, of said reason might sustained liability, until after any denial plaintiffs of its time notified Kansas; that Supreme Court of affirmance of said 1921, 10, March 1921, and on 3, affirmance, on March after such refusing assigned as to settle said claim defendant refused been obtained judgment had not that its reason for refusal fact alleged that rea- King, plaintiffs the defendant plaintiffs, to their had misled foregoing son of the the defendant notice, and was of want of es- claim prejudice, and had waived plaintiffs, and es- topped deny to was it is conceded topped liability. In the brief for defendant deny to injury given. that notice of the was insurance with the defendant for carrying had been
Plaintiffs years. Topeka, Kansas, Stephenson and Webb of were the several policies. general company, and issued the One agents for defendant Whitney by Stephenson soliciting and Webb as employed F. E. employed by adjuster. agent, and defendant as was also Whitney applying receiving pol- Plaintiffs for dealt icies, they From paying premiums. to time submitted Whitney pay-roll for ascertainment him of the their amount due, premiums pay-roll. day A based such two after injury by King, plaintiffs made and was sustained delivered to Whitney a and statement Thereafter, written notice thereof. on 30, 1916, railway company bill plaintiffs December sent its crane, the rental of the and the the men used plaintiffs. railway company Plaintiffs this to the about Febru- ary pay-roll plaintiff, 10, 1917. The which included the wages men, paid for the services of these was submitted to Whitney, and premium paid accordingly by plaintiffs based thereon was Whitney, and defendant had retained same. At the time the pay-roll was submitted and based paid, it Whit- ney knew of King, the accident to and had discussed the same with plaintiffs, January 5, and about in a letter written by Stephenson him plaintiffs and Webb he asked the to inform Stephenson “exactly they and Webb under what terms” “arranged with the Santa Fe for the use the crane and men.” The let- ters were written examiner, defendant’s claim and show defendant had question under consideration whether Casualty Georgia King or not name pay-roll did total helpers. hours,” “4 stated helpers, ran: other It wages. given, recognized the notice company
The defendant correspondence as: in its ‘‘Re claim, carried referred King.” E. No. Comp 9481, Swanson Brother's — Geo. plaintiffs'and the' contract between also informed indemnify railway
railway company plaintiffs Avere bound February 16, shown to defendant company. This is letter Stephenson Webb. 1917, from railway company, which against the King’s suit filed
After February plaintiffs notified 1917, the about charge Mr. of that suit. Hen- thereof, take and demanded company, Whitney advised ánd adjuster for nis, claim charge of and Swanson, that did take settle F. L. charge claim, would it to settle, testimony Whitney Avas effect that tiffs. The interfere; that under the terms of the asked Hennis *8 it, to and take company would have handle care the insurance would willing him Whitney of told the defendant was it. Hennis to compensation act, and asked Hennis if the claim under the settle and way, that (Hennis) help said, him settle it Hennis he would “No.” railway against King company, suit
After filed de- of McKeever, attorney Topeka, rep- an to engaged fendant also Mr. arising King’s injury. out it to of respect in Mc- resent employment in After represented claims. Keever other Whitney went to McKeever, and one of McKeever Whitney plain- and place talks between them. and two three took been answer had filed in the tiffs were disturbed because suit by King. As a against result of brought Avas in that answer, suit, which filed prepared McKeever an behalf sign did the ansAver company. attorney. not He Whitney, Swanson and his talk with and He testified that be- good fellow, accommodation to the cause SAvansonwas prepared in form answer, prepared tiffs he accordance attorney railway company, for the with the wishes of the and that testimony doing There for so. for he received no fee attorney going act as said was for this that McKeever he defend- King in” case of ant “sit the trial of the the railway trial, however, company. present, He Avas which was con- attorneys for company. for ducted the defense of witnesses of the the names accident to King It shown given by one of the Letters Steph to McKeever were introduced, written in Webb McKeever enson Term, You. know, like to Brothers would 1918, stating that Swanson early in time, when suit kept as to the would informed o to defendant Stephenson Webb tried, and also letters interest of the defendant suggesting it was to the company, correspondence on provide defending for suit. The the. Whitney. conducted It was Stephenson and Webb was court O. Swanson attended oc Wm. shown trial, but was not fact King suit was set casion when the that, of expenses which rendered a bill de He afterwards tried. through paid. Whitney, payment was McKeever fendant payment'was having charge. This made in De approved the also cember, 1917. from the claim Stephenson and Webb examiner of de-
Letters to office, period shortly in the fendant, at written after the its home filing King’s purport introduced evidence. The suit, were would treat the claim as a straight was that defendant those letters letter March compensation 13, 1917, claim. In a dated workmen’s Webb, claim examiner Stephenson defendant’s said: “We far Company so as the liability will defend the Railroad does not run to our contract Swanson Brothers under Railroad our assured Company. We do not insure contract liability. a W. us We insure C. makes them under liable to the injured compensation Act, under the insured due otherwise nothing we do the case.” have to with Referring McKeever, the same letter the connection stated: present Mr. merely having
“We McKeever at this trial protect are necessary, interest, protection regardless our become should such railroad communication addressed our as- sured. We will not the action their béhalf defend unless it is brought law then will we be very glad it. Please understand this case is to be defend handled along *9 in this Mr. is sit at the trial line. McKeever to should it be neces- sary company.” to defend of this the interests writer of the fully letter further “I am convinced that said: the court will hold injured time accident at the not employee of railroad, of but an our assured and came under the W. O. McKeever, finding this act. Instruct Mr. is made, the case be im- mediately settlement, writing taken him for the amount it can for, together be his recommendation.” settled The letter quoted “Stephenson from & Webb, was addressed to Attention Mr. Whit- ney.” suggestions response It was in to Stephenson Webb, of and defendant, Whitney, letters wherein writing in the name Webb, Stephenson expressed of and the view that if recovered railway company from under the common-law liability, the de- fendant, policy, might under the terms of the be liable over Georgia Casualty y. 1926} than that greater sum might for a.
plaintiff, judgment and be testimony, how- is no law. There recovered under Whitney, anyone or Webb, ever, Stephenson defend- position of defendant, informed the Steph- from the home office letters, ant as stated these written enson Webb. days Ms a few after on March
McKeever testified that Swanson, prepared and after he had Whitney talk with had plaintiffs telling so, them he had done but answer, he wrote courtesy; authority defendant, only but as a done so without defendant; bind that he was not that it was did not understood liability. deny Plaintiffs authorized either to affirm or testified that they did not receive the letter. present King against the trial
Plaintiffs were at case testimony railway company. they were by anyone trial, notified the time to the effect is liability had that defendant deny no information would until after the in the appeal. decision rendered case . The recited that consideration of the and the attached, statements in the schedule were warranted to be true, agreed: pay the defendant “To administer and compensa- services, hospital tion and furnish the medical services and medi- cines, required by the Workmen’s Law or Laws des- ignated schedule, bodily injury said on account of received or by any person persons, or while this in force, in- cluding resulting any death therefrom. at time
“(2) To expense arising or resulting or damages claims the assured for account bodily injuries alleged accidentally suffered or have been suffered pol- while this icy is in force, including any death therefrom, any employee employees or of the assured reason of the business schedule, injuries described in the said whether said or death are suffered, accidentally alleged suffered, been have at the locations ¡-aid named schedule elsewhere.” subject This was stater to certain conditions which precedent. construed conditions The first of these as fol- : judgment upon lows “In any the event a final covered policy being rendered will pay satisfy protect the assured levy judgment.” execution issued on such Statement place of the schedule described where assured’s operations were to be carried on as Kansas,” “State of ‘‘State Oklahoma,” kind described the of business done as erection of *10 a building Atchison, Topeka & Santa Fe Company. Railroad Term, You. continue accepted would had 5 was that assured
Statement Law Kansas. operate the Workmen’s under shall premium 6: The “Statement Statement was as follows: by all earned em- wages compensation or be based entire in Statement described (as by the law ployees defined of the assured con- including employees 5) described, engaged in the herein work may be liable the assured to whom tractors sub-contractors are or sub-contractors law; such contractors the terms said unless or have otherwise company or association in an insured authorized obligation.” discharged such month- assured to make provisions requiring contained premium to computation of
ly report pay-roll for the of their actual report of the actual request, a paid. any time, upon be To make at times, to right, at reasonable pay-roll, gave also contains It also and records. inspection books make of the assured’s call counsel P, respective paragraphs designated E and as in which are as follows: briefs, attention their change any in force, shall be policy is in there If, “E. this while trade, occupation of the business, or profession or extension assured shall hereof, or as in the schedule assured set forth any class do of work repairs or any make alterations or structural such any part of work (including not described schedule sub-contractors, to the performed or em- by contractors for assured law ployees the terms of the whom liable under de- the assured is schedule, provided such contractors or scribed Statement company or any associa- are not insured authorized sub-contractors discharged obligation), such the earned tion or have not otherwise wages adjusted the earned or be the basis of shall every business, paid trade, profession, compensation in or for such company’s respectively occupation appli- or work at rate or rates cable thereto. employees Wages compensation
“F. shall or herein used paid any employees wages compensation all or nature include compensated by salary, wages, piece work, whether overtime or paid board, in cash—in whole or allowances whether —in certificate, merchandise, or store credits substitute cash. respects wages “As work covered where actual compensation employees parties performing of other such shall ascertained, work under contract cannot same estimated on basis of usual for the character of performed, but same shall not be less than work one-third of .the price performed.” full contract for the work prepared attorney, McKeever, The answer defendant’s filed in King against company, put the suit evidence. That answer set the defense that was in the service *11 n Casualty Georgia 1019 Co. v. plaintiffs their direc- independent contractors, these and under tion; him while that so company had control over acts al- engaged, used, over the nor over nor the instrumentalities leged alleged were done as negligent, all of which acts it was plaintiffs. upon which the Among findings these fact special iron finding verdict that the washer was rendered in case was a that lying negligently which left loose upon injured King fell upon a truss these upon based facts Supreme
The decision of Kansas was Court rail- out, King being therein found, set way company perform the service was directed might which direct undertook, plaintiffs he manner in changing employers, done; to be that he was not informed he was inquiry. anything put nor him to him disclosed to opinion principle does not also stated it was a change circumstances employers his own Under the without consent. negligence of these recited, holding was that the act of employer gave who railway company, attributable to the as the work, order to to do that the work accordance with do that, it was held that plaintiffs. Upon the directions of these holding- King, and reference was liable to 379) (108 Kan. servant, it was said : on the relation master and ‘‘ hardship, any that is If the of this works matter enforcement rule That court adjustment two masters.” further ex- between the pression and the these com- of its views said that pany employer “all under the circumstances.” one grounds upon which trial court
We are not advised as pol- insist that Counsel for defendant sustained the demurrer. liability coming through indirectly, icy not insure does support In of their contention that contract. the medium plaintiff liability, counsel refer covers indirect 162; App. Fidelity 200 Surety Co., Mo. Harnden v. Southern Cas- & (Ky.) 900; 101 W. ualty Co., S. Creem v. Southern News Supp. 555; Lamkin Casualty Co., 126 N. Y. v. U. F. Fidelity & S. 712; Black Mountain Railroad Supp. 201 Co. v. Co., & G. N. Y. Maryland 637; Casualty N. C. Kibler Corp., A. 172 Ocean & G. support the contention that 159. These cases the lia- Co., Wash. kind, policies of this bility company under does not of an insurance necessarily upon manner in which the depend claim enforced directly indirectly, but whether bodily is, original causation, character of Among are cases wherein them there employee of the assured. indemnify party of the assured agreement party such injury, and where negligent act caused whose injured. person held liable Term, Missouri, Yol. find Board research, we own Among in onr cases examined wherein Minn. Co., 160 Casualty Georgia Livery Co. v. Trade para- identical provision practically
is construed the effect of Min- In the question. here from the graph quoted above Company Navigation Northern passengers of the case, certain nesota un- belonging automobiles a ride in were entitled to plaintiff. and the navigation company der' a contract between *12 op- owned in an automobile injured while passengers were judgment contract, recovered by plaintiff under erated company paid That company. navigation against the therefor plaintiff. against judgment and sued and recovered judgment, brought suit judgment, having the latter plaintiff satisfied liability policy issued upon automobile indemnity referred policy the court by setting out the terms defendant. Ini said: ‘against arising or
“By policy was indemnified this on damages assured for account of resulting from claims suffered, injuries accidentally alleged or bodily to have been policy force, including resulting any in this death while employed by therefrom, by any person or persons, by any or ownership, reason of' the maintenance use the auto- policy. mobiles’ covered ‘exceptions,’ any ‘liability which
“There were the usual one of any of others agreement, assumed the assured under contract or ’ provided oral brought or written. The that no action should be against payment by company (de- defendant unless to enforce fendant) ‘of a final rendered a trial in against after a suit ” damages.’ the assured for discussing questions 'necessary
After certain here, to mention the court said: further
“Going question now to the controlling case, it must be re- against solved simple defendant for the reason that what it insured plaintiff against not, analysis, judgments the last damages or any claims of kind, but arising ‘loss up- claims damages assured for bodily injuries on account of accidentally alleged suffered or to have Liability depends, been suffered.’ there- fore, not on the manner in enforced, which claims are as.being indi- rect rather than direct, agency but causation, e., i. claims damage ‘for bodily injuries.’ account of required The amount Navigation reimburse the Northern Company for the judg- Thurston clearly ments is so a loss of the kind against, insured ought that it require argument not to demonstrate that it is within coverage. If the claim had been enforced against Thurstons plaintiff directly, there would suggestion have been no by defendant that it was not liable. It would have assumed against the defense Georgia Casualty ordinary and is the them. That claims or would have settled those inescapable course in such cases. through the medium of claims now come fact that the same
“The asserted, were first cer- navigation company, against which navigation company tainly That change cannot their character. alter case. The does not happened to be liable the Thurstons thereby changed permit so as to defend- are not merits the case- How- escape its contract. liability clearly from a assumed ant’s finally brought were home ever or whomsoever the claims respond money, they still a ‘loss’ plaintiff so it had to question. escape Defendant cannot against by assured final and unusual followed liability because of the devious route plaintiff. claims This conclusion for- enforcement of the imposes language ‘D’ of condition tified discharge judg- all final express obligation to upon defendant (plaintiff) ‘on of accidents ments the assured account cov- policy.’ ered exception responsibility contract of ‘lia-
“The from defendant’s bility agree- the assured under contract of others assumed obligation ment’ cannot be allowed to relieve defendant from its *13 arising liability its own for plaintiff against per- loss insure passengers. is the kind of liabil- injuries suffered its That sonal compelled respond. In ity reimbursing to which has been outlay on navigation for its account the Thurston liability making good own judgments, plaintiff was its and its own wrong liability navigation wrong primary and not a com- which is not altered pany, a conclusion the correctness of the cir- in the first instance were cumstance that the Thurstons able col- navigation company. Notwithstanding fact, lect from the that giving wrong, initial rise to the cause action resulting liability ‘loss,’ plaintiff, act and the was the of the its clearly liability against from which was and one those loss insured by defendant. joint analogous to where one
“The case is those of two tortfeasors indemnity other. That is may compel from the allowed notwith- original liability, where, as standing joint themselves, only a between wrongful fault, is act omission is a breach one his of a duty other, primary injury.” owed and the cause of applicable here on
What was there said is most of the features of question was no raised as this case. In that case there to the rela- parties injured, plaintiff and the tion between the contention liability only by determined original be a law such that the may law of Kansas. It also compensation be as the workmen’s men- consideration does not contain here under policy that the tioned against “liability case exception the Minnesota referred [April Term, Vol. 315. contract,” others assumed but the the-assured under sued on under the not contain that second count does case sought provision. enforced liability The mere be fact indirect, is to indem- fact that further contracted nify company, not take outside obli- do the case liability gation original was founded 2, contained paragraph meaning apon bodily injuries who, one within provision in policy, was an assured. which has been heretofore set precedent, called condition out, not a before became liable condition that the defendant assured, to pay, judgment must but there be a rendered agreement by that in should defendant the event upon any rendered claim covered satisfy judgment. defendant would such definitely judgment against company, ascertained and was plaintiffs paid judgment. Considering sustained when paragraph the condition connection the broad terms 2. we necessary hold it was not the claim against plaintiffs judgment. reduced
It for is the contention of that the counsel did King’s injuries any liability cover which was under the Kansas, Compensation Act; Kansas 1923, Chap- Revised Statutes of theory provides ter Article This is that the act remedy persons employed by employer, exclusive who op- is erating provisions By act. force triac law, em- ployers subject employees who are to it their are held to have provisions be within file elected to unless a declaration re- remedy jecting such, As to it. exclusive. [McRoberts Zinc 364; Co., Co., Kan. Shade Cement Kan. In Smith v. 146.] Co., 94 Kan. said: Cement “The "Workmen’s contemplates clearly Act to a workman only shall provisions be made under its where employer both the governed have implied elected to be it. This is *14 option given accept reject to or the each to it.” employer If an he is within provisions is such that the of the act employee or has not accepted it, and either he his the employee is employer If damages. left to suit for the operating his is under the employee act, rejected it, and the employee but the has sues for dam- injuries of ages part caused want due care on the of the em- of risk ployer, assumption defenses of and of contributory the negli- gence employee, and the fellow-servant doctrine, the of are saved to conditions are employer reversed, the act. If the the act takes away employer, the the defenses mentioned who is within the law, accept of not to terms the but has elected it. Georgia Casualty 1023 gen railway company,-King’s
It is conceded in this case that the appears compensation It eral act. employer, was under the 108 Company, opinion Railway the in the of the suit ques upon the passed Kan. l. c. that the court considered It King’s tion of the risk. negligence, he assumed and whether (108 working there at the 379) plaintiff : who was Kan. “The long was with other feet end of the truss which about nineteen the out risk as fault, nor did assume such unusual ong he injured him.” Counsel policy. provisions
Counsel discuss of the various coverage, and general contend policy is one of except liability such counsel insist it covered sides, as on both compensation was within the act. It is conceded be, provisions as it of to considered must that all the are uncertain, or ascertaining meaning, terms are and, that given which susceptible meaning are of is to be is meanings that two quoted, 1 uses the Paragraph more above favorable the assured. required characterizing is as “compensation” word what schedule; designated para- but compensation under law, claim made for graph to a “damages” uses the reference word bodily the husmeas des- injuries employee reason of suffered ignated or named therein elsewhere. in such schedule at the locations arising requires expense or re- It the “loss insurer damages on sulting assured for account of from claims -the bodily by any employee of the assured reason of injuries suffered places named or elsewhere. business” whether Paragraph law, paragraph but directly refers to the plaintiffs to that As between de- contains no reference law. term, is meaning fendant to'be susceptible policy, and determined the terms of the anyone employed upon meant construction that term indirectly, wages designated whose work, directly either required pay premium. necessarily Considering all and therewith the terms of payment requirement premiums, provisions all the susceptible policy requires construction that fairly persons doing all premium upon work in payment of employees designated them- whether are the business employees persons, where, sense, of other direct selves employers, employees such plaintiffs and other contract between procured part designated, do a the work are the latter employer operat- although such other was not be true, hold this to we compensation act. ing procured railway company
King, through agreement work, do such plaintiffs *15 Supreme Term,- 1024 315. Court Yol. company. was not the com- The railway the not; employee, King but King, as its was was so act, and pensation policy, pre- under the terms the that employee of of far an wages upon upon of payable' his the the other mium was defendant so construed the like relation. The men in the investigating touching the facts the after accepted premium. has King retained the plaintiffs, of to relation especially a carried referable defendant reserve that the record shows King. There liability is no account question of upon any concealment there was facts that question liability upon of the King, borne relation premium thereunder, or that defendant was misled as tiffs to any fact. obligation urge of de that defendant Counsel indemnity Santa plaintiffs for the fendant reimburse by estoppel, and was made was that no such issue Railway created Fe in they say estoppel pleaded petition, jury, because reply, relying regard that not be made an issue and could Telephone Company Louis, v. St. 268 Mo. l. c. upon the decisions 550; Loving 249 l. 498; Morrison, Co., Mo. c. Co. Cattle Grooms Railroad, They fur 352; Mathieson v. Mo. 176 Mo. l. c. rely upon estoppel could not urge that to create an ther v recovery holding in under the obligation authorize McLain 122; Berry Mo. Co., Co., Trust l. c. v. Insurance Mercantile App. may plain l. c. 468. As to these contentions it be said that Mo. it, do reply, their- as we construe not seek a create cause 'tiffs They alleged King in their estoppel. petition that action reply right denial employee. a defendant allegation petition. with the position inconsistent take De . answer, specifically King fendant, in its denied that employee, was, alleged that if he he was under the Kansas but holding up Kansas, also set Law, and company, constituting the suit adjudication King’s binding plain relation plaintiffs, tiffs. departure was a urge reply
Counsel defendant also that the petition. Upon that defendant went to it must a de- suggestion objection trial without constituted reply that the parture, or that do not construe We set new cause of action. reply there- petition, as a as consistent departure from but with, that, reply its con- substance relying position estopped duct assumed defense that was not an .of Conceding general employer relation of ineon- is not existed between King, company find *16 Meg. Co. Sturtevant Ford sistent the existence of the relation of employer and employee between the terms the policy, which made the of premium, because basis of the fact he, although of another, doing a part designated plaintiffs. work of purpose For pre- of collection of mium, and providing indemnity against plaintiffs, loss to from a bodily through for him negligent acts of plaintiff, he was an
In foregoing consideration of the we hold that the court erred in sustaining demurrer, denying and in motion set aside' the involuntary nonsuit. Seddon, should be reversed and cause remanded'.
C., concurs.
PER C., is foregoing opinion hereby CURIAM: —The by Lindsay; adopted judges concur, opinion All of the ex- of the court. cept Graves, J., absent. Company Manufacturing Company,
B. Ford F. Sturtevant
Appellant. One,
Division October Material' Shipment: Probable Date: Fact: Reasonable Time: 1. SALE: Prejudicial the seller Comment. Statements of Instruction: Eliminated as of the shipment intention probable are admissible to' show the time of delivery, time for parties what constitute reasonable as to shall tending 'to what the a material fact show constitute and such statements seller time, not to -classed the-instruc- and are a reasonable deemed jury expectation. opinion were told in one Where or as mere tions machine, shipping question of reasonable instruction shipped by plaintiff buyer made and and to be the defendant ordered attending trans- circumstances .seller, all the determined must be was told advised action, that defendant tends to evidence show dates, shipped "or about certain would on plaintiff the machine being May .20th, by plaintiff, first fixed named and which .all of August 20th, shipped July and the machine was 25th another the next rejected then 18th because arrived on October September 12th orders, plaintiff telling according shipped another instruction plaintiff in letters that made it would jury statements that “mere May July. 25th, 20th, shipment complete or- on or expected -on or about opinion thought 20th, expressions August as to when were mere it ship shipment” mere failure that “the the the expected make it could n of, machine, plaintiff deprive alone will of said dates machine, “the and that right the value of to recover” ship equipment after in which to to a reasonable time entitled -request ship, request unless said did "fix or the defendant to last shipped,” highly prejudicial was to be the time in the same limit giving reversible error where tbe constituted to defendant jury'that-it plaintiff. in effect tells the wás instruction verdict Said 315 Mo.—65.