E. M. Upton Cold Storage Co. v. Pacific Coast Casualty Co.

“In consideration of the warranties herein and of thirty-three 00/100 dollars ($33.00) premium the Pacific Coast Casualty Company of San Francisco, California, hereinafter called the company, hereby insures E. M. Upton Cold Storage Company, of the county of---state of New York, hereinafter called the assured, against loss and expense arising from claims upon the assured for damages on account of bodily injuries accidently (sic) suffered or alleged to have been suffered during the period of this policy by any person by reason of the operations of the elevator described herein or by reason of the existence of the elevator wells, hoistways, or equipment thereof. This insurance is subject to the following conditions.”

Then follows a statement of the provisions thus designated as conditions under separate headings and in separate paragraphs, which are designated by the letters A to J, inclusive. These conditions, so far as material to the present inquiry, are as follows:

“Reporting Claims. If a claim is made, on account of an accident the assured shall give like notice thereof; and the company, at its own expense will settle or contest the same. Reporting Suits. If a suit is brought on account of an accident the assured shall forward immediately to the company or to its duly authorized agent, every process or paper served upon him. The company at its own expense will settle or defend said suit whether groundless or not; the moneys expended in said defense shall not be included in the limits of the liability fixed under this policy. The assured shall not assume any liability, nor interfere with any negotiation for settlement or any legal proceeding, nor incur any expense nor settle any claim except at his own cost, without the written consent of the company. Co-operation of Assured. C. The assured shall render to the Company at all times all co-operation and assistance in his power. * * * Right of Recovery. I. No action shall lie against the company for any loss or expense under this policy unless it shall be brought for loss or expense actually sustained and paid in satisfaction of a final judgment within ninety days from the date of said judgment and after trial of the issue.”

This policy in terms provides that defendant will insure plaintiff against “loss and expense arising from claims upon” it for damages suffered or alleged to have been suffered by reason of the operation ór existence of the elevators and hoistways described in the policy. It, however, could not be required to pay to plaintiff such “loss or expense” except upon the latter’s compliance with the conditions set out in the policy as fairly interpreted. As provided by condition “I,” above quoted, no action by plaintiff against defendant for the recovery under the policy of any loss or expense shall lie, “unless it shall be brought for loss or expense actually sustained and paid in satisfaction of a final judgment,” etc. Therefore appellant insists that, as an appeal in the Robinson action is still pending and undetermined, the amount of plaintiff’s “loss and expense” by reason of the action on his claim has not within the policy provisions been determined by final judgment. From which it would follow that the cause of action so far as that claim is concerned had not yet matured. But this provision of the policy in its present application should be read in connection with its other provisions and in view of the facts disclosed as to what the parties actually did in the conduct of plaintiff’s defense to that action. Defendant, as was its right under the policy, assumed the entire management and control of plaintiff’s defense to that action. Having'done this, plaintiff was, as the policy further provides, precluded from in

[2] Plaintiff is also entitled to recover the amounts it was compelled to pay in satisfaction of the executions issued on the judgments recovered by the surgeons. Plaintiff was required by the terms of the ■policy to render to the defendant company at all times all co-operation and assistance in its power. Discarding from our consideration all promptings of humanity, which may reasonably have been within the contemplation of the parties in-making the agreement, it would seem that the language of the policy above referred to expressed the intention of the parties that plaintiff agreed, in the event of an accident covered by the policy, to render such immediate assistance to the persons ■injured thereby as might reasonably be required to minimize the resultant damages, which defendant might ultimately be liable to pay. A considerable part of the surgeons’ claims was for surgical attention given to Robinson. The necessity for such services was immediate -and imperative, if his life was to be saved. In such case the plaintiff was fairly required by its agreement to secure the proper surgical treatment. Having done this, thé expense it had’ thus incurred is fairly within the loss and expense covered by the policy.

It is claimed by appellant, however, that- the policy expressly prohibited plaintiff from assuming any liability or incurring any expense except at its own cost without defendant’s written consent. This prohibition appears in the paragraph of the policy entitled “Reporting Suits,” and is manifestly a part of, and by its context limited to the procedure, rights, and powers of the parties after suit had' been .brought. It does not, therefore, operate to restrict the plaintiff’s dbli

[3] In each of the actions brought by the surgeons, plaintiff, pursuant to the terms of the policy, as soon as the summons and complaint therein were served, duly notified the defendant of the claim and forwarded to it such summons and complaint, and in each instance demanded that defendant defend the same or settle the claim; but in each case it refused to appear and defend, or to settle the claim. These claims, or some part thereof at least, were, as we have sought to show, expenses arising from claims upon plaintiff for damages on account of bodily injuries accidentally suffered within the intent and meaning of the policy. Suits having been brought thereon and defendant duly apprised of the fact, as the policy required, it was then obliged either to settle or defend the suits, as the policy expresses it, “whether groundless or not.” It neither settled nor defended the suits, and plaintiff was forced to pay the judgments.

It follows that plaintiff was entitled to recover the amounts it was compelled to pay to satisfy them.

The judgment should be affirmed, with costs. All concur.