120 Ky. 218 | Ky. Ct. App. | 1905
Opinion by
Affirming.
On February 22, 1901, John Warren, an employe of -the Henderson Cotton Mills, was killed;, suit was brought by his administrator against it, and a judgment was recovered for $2,944.40 and costs, which was affirmed by this court. (Henderson Cotton Mills v. Warren’s Administrator, 70 S. W., 658, 24 Ky. Law Rep., 1030.) The Henderson Cotton Mills paid the judgment, and then instituted this suit against the Travelers Insurance Company on a policy issued to it on the 4th of April, 1900, indemnifying it for the period of one year against such losses. The policy reads as follows: -,
In considera tion-oL the-warranties in the applied
Here follow .16 conditions, the 1st, 9th, 10th, 11th and 14th of which are as follows:
“1. The company’s liability for an accident resulting in injuries to, or in the death of, one person is limited to fifteen hundred dollars ($1,500), and subject to the same limit for each person, the total liability for any one accident resulting in injuries to, or in the death of, several persons is limited to ten thousand dollars ($10,000.00.)
“9. 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 home office of the company every summons or other process as soon as the same*223 shall have been served on him, and the company will at its own cost defend against snch 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 ‘1’ of the foregoing provisions, as limited therein.
“10. The assured shall not settle any claim, except at his own cost, nor incur any expense, nor interfere in any negotiation 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 assured when requested by the company shall aid in securing information, evidence, and the attendance of witnesses, and in effecting settlements, and in prosecuting appeals.
“11. This policy does not cover loss from liability for injuries to, or caused wholly or in part by, any child employed by the assured contrary to law, nor to, or caused wholly or in part by, any child employed under twelve years of age where no statute restricts the age of employment.
“14. No action shall lie against the company as respects any loss under this policy unless it shall be brought by the assured himself to re-imburse him for loss actually sustained and paid by him in satisfaction of a judgment after trial of the issue. No such action shall lie unless brought within the period within which a claimant might sue the assured for damages unless at the expiry of such period there is an action pending against the assured, in which ease an action may be brought against the company by the assured within thirty days after final judgment has been rendered and satisfied as above. The company does not prejudice by this clause any defenses to such action which it may be entitled to make under this policy.”
The action was not brought within 30 days after the plaintiff paid the judgment in favor of Warren’s administrator, but was brought on the thirty-first day thereafter. The provisions of the fourteenth clause above quoted are relied on .to defeat the action. The validity of such clauses was recently considered by this court in Union Central Life Insurance Company v. Spinks, 83 S. W., 615, 26 Ky. Law Rep., 1205, and it was there held that contract limitations of the time in which an action may be brought are contrary to public policy and void. The previous cases are collected in that’opinion, which is conclusive of the question.
The defendant pleaded that John Warren was under 12 years of age. This was denied by the reply. The defendant introduced the mother of John Warren, and two of his brothers, who testified that he was horn on September 3, 1889, and wias about 11 years and 5 months old at the time of his death, on February 2, 1901. The mother testified that she kept a record in
The verdict is not against the weight of the evidence. The jury were warranted in finding interest from the bringing of the suit under the prayer of the petition for all proper relief, although such interest was not specifically prayed in the petition.
As the insurance company did not defend the suit, and the cotton mills company had to defend it and could not make a settlement, the court properly held
Judgment affirmed.