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(273 S.W.) sions of the compensation act, but had not, care to so maintain it. Not only so, the elected so to do. Before action on the de- court had already in instruction No. 1 propmurrers a reply was filed, and thereafter an erly told the jury it was the duty of defendamended reply, wherein it was alleged ap- ant to use ordinary care to maintain the pellant was engaged in coal mining and en-roof in a reasonably safe condition. It is titled to operate under the compensation act, clear therefore not only that instruction No. and had not elected so to operate, and that 5 was wholly unnecessary because there was therefore the defenses of contributory negli- no issue as to the duty of inspection, but begence, assumed risk, and the negligence of a cause the duty of maintaining the roof in a fellow servant were not available to it as de- reasonably safe condition had already been fenses. The pleadings in the Adams Case imposed upon defendant in the first instrucpresent practically the same issues, except | tion. as to violation of rules hereinafter refer- But it may be said that under the circumred to.

stances there was no prejudicial error, beFor the plaintiff, one of the occupants of cause considering the instructions as the car in which Barnard and Adams were whole, the jury must have understood them; riding testified that he saw the hanging slate but we have in one instruction the correct at the place of the accident in 10 minutes duty imposed upon defendant of using ordiafter it happened, and saw blood on it, and nary care to maintain the roof in a reasonthat it was hanging 2 or 3 inches below the ably safe condition, and we have in the othnormal surface. He also testified that he had er an absolute duty imposed upon it of so observed this hanging slate either the day maintaining the roof, and the right given to before or two days before the accident. An- decedent to assume that defendant would so other witness, who was an occupant of one maintain it. Not only did instruction No. 5 of the cars that morning which had preced- impose a duty upon the defendant which the ed the one in which Barnard and Adams law does not authorize, but it likewise tells were riding, testifies that he on that morn-them that decedent might assume that deing, while going into the mine, saw hanging fendant would maintain it free from hang. slate at some point in the main entry, but ing slate, which might easily have been undoes not definitely fix it as at the place derstood by the jury to relieve decedent himwhere Barnard received his injury. There self from any duty to look out for or protect were other facts and circumstances in evi- himself from such obstructions. Likewise dence, not necessary to enumerate, tending instruction No. 5 appears to authorize a reto corroborate these statements as to the ex-covery for plaintiff, if his injury resulted istence of hanging slate which brought about from hanging slate no matter how recently these injuries.

such a condition might have come about, On the other hand, several of the occu- while in instruction No. 1, wherein the proppants of the car, and other employees of de- er duty was imposed, there was a qualificafendant, testified that a short time before tion to the effect that, if defendant did not and a short time after the accident the roof | know of the same, or by the exercise of orat that place was in its normal condition, dinary care could not have known thereof some of them saying only that so far as they in time to have removed the danger, there saw or noticed there was no hanging slate could be no recovery. Not only should inat that place. Upon mature consideration, struction No. 5 not have been given at all, we have reached the conclusion that there but as given it imposed upon defendant a are two errors in the record which must re- duty which the law does not impose, and sult in the reversal of the Barnard Case: (1) was susceptible of the interpretation the deThe giving of instruction No. 5, wherein the cedent himself was not required to exercise jury was told that decedent was under no any care for his own safety. The requireduty to inspect or repair the roof, "and that ment that defendant should maintain the he had a right to assume that the defendant roof free from hanging slate, that might unwould maintain it free from hanging slate," necessarily endanger the safety of its emand (2) the refusal of the court to admit in ployees going into the mine, cannot be said evidence a signed statement by the witness to impose no higher duty than one placing Flener made prior to the giving of his evi- upon it only the duty to exercise ordinary dence, wherein he made statements appar- care to maintain the roof in a reasonably ently inconsistent with his evidence on the safe condition. Reffitt v. S. & S. T. P. Co., stand.

170 Ky. 362, 186 S. W. 155; Hazard Coal [1-4] In the first place there was no quesCo. v. Wallace, 181 Ky. 636, 205 S. W. 692. tion either in the pleadings or the evidence We are impelled therefore to hold that the involving the duty of inspection upon the giving of instruction No. 5 was prejudicial part of decedent, and in the next place the error. instruction, as framed, makes the duty of [5] The witness Flener was the only witdefendant to maintain the roof free from ness in the case, who definitely stated that hanging slate an absolute one, rather than there was hanging slate at the place of the to place upon it the duty to use ordinary accident, and prior to the giving of his testi


mony on the trial, he had given a signed , ficers and agent of defendant, whose duty it statement of which the following was was to enforce the rules. Upon another trial part:

the court will admit the evidence of all the "It is my honest opinion that the reason Will witnesses who were present, as to what oc(meaning Barnard) was hurt was because he curred when Barnard got on the car, but will was sitting in a cramped position and tried to exclude such of it as were mere expressions raise up to ease himself and, on account of the of opinion as to the danger of his riding on crowded condition of the car, raised himself too the front of the car with the driver. high."

[8] The instructions in the Adams Case

were free from error. Adams was an emOn the trial defendant offered to introduce this signed statement as tending to contra- ployee and was riding in the body of the dict the positive statements of Flener, as to car, and was one of the first persons to the existence of the hanging slate and the board it, and there is no claim he was viocause of the injury, and the court declined lating any rule, but was merely going to his

work in the usual way. Even if Barnard to permit the quoted portion of it to be

had by his own willful misconduct brought considered. Without Flener's evidence, the case would not have been submitted to the about the injury to himself, and consequentjury, and as this prior statement of his may ent reason why Adams should not recover,

ly the injury to Adams, still there is no apparin some of its aspects be considered as wholly inconsistent with his evidence on

for the fellow servant doctrine is not avail

able as a defense. the trial, we are of opinion that the court erred in not permitting the same to be heard

It is further ably and earnestly argued as contradicting it. It is true the language, St. § 4880 et seq.)

that the Workmen's Compensation Act (Ky. in which that part of the statement is couch.

violative of the state

Constitution. ed, is technically only an expression of opin

Not only has this question ion by Flener; but when it is considered that been exhaustively considered by this court he was an occupant of the car and a witness in an action brought specially for the purto the accident itself, it is difficult to har. pose of testing the constitutionality of that monize that expression of opinion with his act_(Greene v. Caldwell, 170 Ky. 571, 186 subsequent evidence on the trial.

It can

S. W. 648, Ann. Cas. 1918B, 604), but similar hardly be true that he entertained that opin- acts have almost without exception been held

constitutional in a number of other states. ion as to the cause of the injury, when according to his evidence on the trial the hang. In the light of the modern tendency shown ing slate was the sole cause. Clearly such by these acts to change the method of an expression of opinion by him, being in-awarding compensation to injured employees, consistent with his testimony, was compe

we do not feel called upon to reconsider that tent to destroy or weaken the latter, and

question. surely this erroneous action of the court,

The judgment in the Barnard Case is recombined with the error in giving instruc- versed, with directions to grant appellant a tion No. 5, constitute reversible error.

new trial, and for further proceedings con[6] The evidence did not justify the giv- sistent herewith; but the judgment in the ing of an instruction on willful misconduct.

Adams Case is affirmed. At the time of the injury, the decedent was in discharge of his duty in going by the usual route to his place of work, and was guilty of nothing which was intended to, or which TRANSYLVANIA CASUALTY INS, CO. et al.

v. WILLIAMS. would have, in the ordinary course of events, brought injury either to himself or other (Court of Appeals of Kentucky. June 16, employees. Not only was the company sup

1925.) posed to carry him to his work place on its cars, but assuming he was acting in viola-1. Insurance Ow514–Policy limiting liability to tion of the rules, such violation, when con

actual loss from claims for damages construed

according to terms. sidered in connection with the alleged negligence of defendant, is contributory negli- from claims for damages for bodily injuries,

Policy indemnifying against loss resulting gence, and not willful misconduct, and con

not against mere liability for loss must be consequently not available as a defense. West strued according to its terms, without enlargeKy. Coal Co. v. Smithers, 184 Ky. 211, 211 | ment or restriction; subject-matter being one S. W. 580 (second appeal) 188 Ky. 224, 221 as to which parties had right to so contract. S: W. 558; Hollenbach Co. v. Hollenbach, 2. Insurance Ow514—Party recovering judg. 181 Ky. 262, 204 S. W. 152, 13 A. L. R. 524.

ment against insured, who never paid it, held [7] Likewise the second instruction, deal- not entitled to recover amount from insurer. ing with the question of habitual violation

Under policy indemnifying "against loss of the rules, should upon another trial em- arising or resulting from claims for damages on brace the idea that such violation was by account of bodily injuries," one recovering and with the knowledge or assent of the of- judgment against insured, who was insolvent

For other cases see same topio and KEY-NUMBER in ail Key-Numbered Digests and Indexes

(273 S.W.) and never paid any of judgment, could not re- , appellant Joshlin, with the name and date cover amount thereof from insurer, in absence and amount omitted. A general demurrer of statute so providing, policy indemnifying was interposed to the petition and overruled against actual loss sustained by insured only, by the court. When the defendants Joshlin not against liability for loss.

and the Transylvania Casualty Insurance 3. Pleading C34(4) - Presumption that in Company declined to plead further, judgment

demnity policy, not alleged to have been in was entered substituting appellee, Gypsy effect at time of injury, had expired or was Williams, .by, etc., to the rights of Joshlin inoperative at such time.

against the Transylvania Casualty Company As pleading must be construed strongest and adjudging she recover of the insurance against pleader, petition not alleging that poli- company the amount of the judgment in her cy, indemnifying insured against loss resulting favor against Joshlin for $1,800, with interest from claims for damages for bodily injuries, was in force at time of injury to plaintiff, suing from its date, April 30, 1923, and the cost of insurer for amount of judgment against in the original action, $62.70, and also her cost sured, gives rise to presumption that policy had incurred in the present action. From this expired or. was inoperative as to insured at judgment, both Joshlin and the Transylvania such time.

Casualty Insurance Company appeal.

Appellants earnestly insist that the genAppeal from Circuit Court, Franklin eral demurrer to the petition should have County.

been sustained. In support of this assertion Action by Gypsy Williams, by her next appellants say that the petition does not alfriend, Everett Williams, against the Tran- lege there was any consideration flowing hesylvania Casualty Insurance Company and tween appellee, Williams, by, etc., and the another. Judgment for plaintiff, and defend- Transylvania Casualty Insurance Company ants appeal. Reversed.

for the execution and delivery of the policy ;

and, further, that it is not a verred in the petiPolk South, Jr., of Frankfort, and Jas. P. tion that the policy of insurance alleged to Haswell, of Louisville, for appellants.

have been issued to Joshlin was in force and T. L. Edelen and Guy H. Briggs, both of effect at the time appellee, Gypsy Williams, Frankfort, for appellee.

was injured; that it is not alleged that Josh

lin was indemnified in any certain amount, SAMPSON, J. Appellee, Gypsy Williams, a girl less than 21 years of age, suing by her to be indemnified is in excess of the judg.

or that the amount for which he is alleged next friend, recovered a judgment in the ment obtained. For these reasons it is said Franklin circuit court against appellant Joshlin for an accidental injury suffered by her in brief of appellant that appellee, Williams, through the negligent operation of an auto- cannot maintain a suit of this nature in Kenmobile by Joshlin, who was carrying indem- tucky or in any other state of the Union exnity insurance with appellant Transylvania cept where there is a special statute permitCasualty Insurance Company, and, when ex- ting it to be done. In support of this last ecution issued pursuant to that judgment was statement appellants cite the case of Fidelity returned “no property found," instituted this & Casualty Co. v. Martin, 163 Ky. 12, 173 S. equitable action in the Franklin circuit court W. 307, L. R. A. 1917F, 924, as conclusive of against appellants Joshlin and the Transyl- the question. vania Insurance Company, praying to be sub- For appellee, Gypsy Williams, it is said stituted to the rights of Joshlin as against the that there is a distinction between the terms Transylvania Casualty Insurance Company to of the contract in the Martin Case, supra, the extent of the judgment for $1,800, re- and the case at bar, for which reason the rule covered by her against Joshlin in the personal announced in that case has no application to injury suit, on the ground that Joshlin is in the present case; that an indemnity company solvent, and the casualty insurance carried which contracts for the right to control any by him was for the use and benefit of persons litigation for accidents, for which it is resuffering damages through his negligence, sponsible, and acquires the exclusive right including appellee. The Transylvania Cas- to control such litigation, is bound by the ualty Insurance Company issued to Joshlin, judgment; that the expression “loss actually before the accidental injury to appellee, Wil- sustained." as employed in the policy, is fulliams, its policy of casualty insurance by filled and satisfied when a good-faith judgwhich it agreed to indemnify him, the said ment is obtained in a court of competent juJoshlin, against loss arising or resulting from risdiction against the insured, upon a cause claims upon him for damages on account of for which the insurer is liable. bodily injuries accidentally suffered, or al- The opinion in the case of Fidelity Casuleged to have been suffered, by any person or alty Co. v. Martin, to which we have referred, persons not in the employ of Joshiin.

seems to have application to the facts of this To the petition was attached a copy of the case and to cover practically every phase policy of casualty insurance issued by the of it. There is, however, some distinction beTransylvania Casualty Insurance Company to Itween the language employed in the contract

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


of insurance in the Martin Case and the in-, contract. With this in mind, it is evident to stant case. The policy in the Martin Case us that the insurance company did not agree provided:

to indemnify appellant Joshlin against liabil. “No action shall be brought against the com- ity for loss, but only against loss actually suspany under or by reason of this policy unless it tained on account of bodily injury suffered, shall be brought by the assured for a loss, de- etc. The petition avers that appellant Joshfined hereunder, after final judgment has been lin is insolvent, and that an execution issued rendered in a suit, described hereunder, and against him on the judgment in favor of apwithin two years from the date of such judg- pellee, Williams, had been returned “no propment, to wit, for a loss that the assured has erty found,” that no part of the judgment had actually sustained by the assured's payment in been paid to appellee by appellant, Joshlin, money-(a) of a final judgment rendered, after a trial in a suit against the assured.”

and that no part of it con be realized by her

from him. Manifestly, from these facts JoshThe policy in this case provides:

lin has not sustained a loss arising or result“In consideration of the premiums and of the ing from claims upon him for damages on statements specified herein, the Transylvania account of bodily injuries accidentally sufCasualty Insurance Company hereby agrees to fered by another through the operation of indemnify the assured designated herein: his automobile. He had not paid or lost a Against loss arising or resulting from claims cent, as is shown by the averments of the upon the assured for damages on account of petition. No loss had been sustained. Had bodily injuries, accidentally suffered or alleged he paid the judgment against him, he would to have been suffered by any person or persons have been entitled to reimbursement by the not in the employ of the assured, while this policy is in force, including death 'resulting at casualty company, but he has not paid the any time therefrom by reason of the ownership, judgment, and has not attempted to require maintenance, or use (including loading and un- the appellant company to satisfy the judgloading) of any of the automobiles described ment against him. In fact, he is in no posiherein, within the limits of the United States tion to ask, if he wanted to, that such payand Canada, subject to the following limita- ment be made until he has satisfied the judg. tions."

ment or has suffered a loss arising in the way The limitations follow and fix the highest specified in the policy. In the case of Fidelamount for the death of a single individual ity & Casualty Co. v. Martin, supra, it was at $5,000, and damage to property of others contended that the recovery of the judgment at $1,000.

by the victim of the automobile accident [1, 2] It will be observed, from a glance at against the owner of the automobile, who the foregoing copy of the provisions of the carried indemnity insurance, “was a loss present policy, that only Joshlin was insured; actually sustained by the estate of the asthat is, he alone was indemnified against sured in the meaning of the policy, for which “loss arising or resulting from claims for [the casualty company) became liable, withdamages on account of bodily injuries actual- out the payment of the judgment by the asly suffered,” etc. Not only that, but he was sured." After quoting the clause of the polindemnified only against loss and not against icy providing that the casualty company shall liability for loss. In the case of Ford v. not be liable except after judgment, and then Ætna Life Insurance Co., 70 Wash. 29, 126 P. only for the loss which the assured “has ac69, it is said:

tually sustained by the assured's payment in "The policy indemnifies against loss and not money of a final judgment rendered after a against liability. It seems quite clear that the trial in a suit against the assured,” we said: liability in clause D, for loss ‘actually sustained "The policy is one of indemnity against loss and paid in money by him after actual trial of actually sustained and paid in money by the the issue,' is not enlarged or changed by the assured, without regard to who assumes the destipulations in the preceding clauses, but that fense, or whether it is successfully or unsuca compliance with its terms is made a condition cessfully made. In the preceding clauses, A precedent to any right of action on the policy. and E, the appellant reserved the privilege In short, the policy is one of indemnity against and assumed the obligation of defending or loss actually sustained and paid in money by settling claims for damages covered by the the assured, without regard to who assumes policy, and the assured undertook to furnish all the defense."

needful assistance in making a defense, and

agreed that he would not voluntarily assume Supporting this doctrine are collected a any liability, interfere in any negotiations or great number of cases from different states legal proceedings that might be conducted by of the Union, some of which are referred to in appellant on account of any claim for such damcase notes in 59 L. R. A. 444; 30 L. R. A. ages, nor settle such claim at his own cost (N. S.) 1224; 11 L. R. A. (N. S.) 1155.

without written consent of appellant. But The contract must be construed according there is nothing in any provision of clauses A to its terms. Its terms must not be enlarged that, in the event such defense as appellant

and E which actually or by implication declares or restricted. The subject-matter was one might make to an action brought against the about which the parties had the right to con- assured for damages should be unsuccessful, it tract and to limit their liability, and they are would pay the judgment. The question of paynot bound otherwise than by the terms of the ment is confined to and provided for in clause

(273 S.W.) K. It would therefore seem to follow that the him the right of action against the insurance fact that appellant made defense for the as- company, which even he cannot bring until he sured or his administrator in the action for sustains a loss by the payment in money of a damages brought by appellee did not estop it liability. For these reasons the authorities from denying liability under its policy in the cited by appellee's counsel as bearing on this present action. The right to defend being given aspect of the case are inapplicable." appellant by the policy, we must suppose that the burden of maki the defense was assumed

Although there is a difference in the phrafor the reason that the award to be made in that seology, we are unable to see any substantial action might finally be the measure of appel- difference in effect between the terms of the lant's own responsibility. And, indeed, would policy contract in the Martin Case, supra, have been, if the administrator of the assured and the case at bar. In both the assured had, as provided by clause K, paid the judgment was to be indemnified against loss and not recovered against him by appellee. But, in against liability for loss merely. The comview of the provisions of the policy to the contrary, the act of appellant in defending the ac- pany is liable only in case the assured sustion for damages in behalf of the assured or his tains a loss by the payment of damages. A administrator was not an agreement, and did judgment against the assured for damages not constitute an undertaking to pay appellee's on account of an accident against which the judgment for the assured or his administrator." policy runs does not satisfy that condition

of the policy, if up to the time of payment of Further discussing the matter with respect a judgment appellant had suffered no loss. to the rights of the injured party to main-He has been out nothing. When he pays the tain an action against the casualty company, judgment, he is entitled to be reimbursed acwe said:

cording to the terms of his policy. "The policy in question was not written for This rule has been changed by statutes in the protection of appellee, or even remotely for some states, but the General Assembly of his benefit. Its sole object was to indemnify Kentucky has not, up to the present time, the assured, Wells, against loss sustained and thought it wise to make the change. In the paid."

absence of such legislation we must adhere There was no privity between appellee, to our announced doctrine and to the rule Williams, and appellant casualty company. generally adopted by courts in the various She had not paid anything to the casualty states of this Union. company, on account of the policy or other

[3] We are pursuaded that the demurrer to wise, and the casualty company had not en- the petition should have been sustained upon tered into any contract or obligation with yet another ground. It is averred in the petiher. Upon that subject we said in the Mar- tion, “prior to the institution of said action, tin Case:

the defendant William Joshlin had procured

from his codefendant, Transylvania Casualty "Whatever obligation arises out of a contract

Insurance Company * is due to the person to whom the obligation ex- the terms of which said insurance company

a policy, by ists or is made; therefore an action for the breach of a contract can, as a rule, be brought agreed to indemnify him, the said Joshlin, only by one who is a party to the contract. An against loss arising or resulting from claims exception is allowed in the case of the third upon him for damages on account of bodily party, for whose benefit a contract is made. In injuries accidentally suffered”; but it is not such case he may be allowed to bring an action averred the policy was in force and effect at in his own name, but it must be made to appear the time of the accidental injury to appellee, that when the contract was made some obliga- Gypsy Williams. Although the policy was tion or duty was owing from the promisee in taken out by Joshlin prior to the happening the contract to the party to be benefited, and of the accident, it may have been cancelled, not merely that the performance of the contract might be made to benefit him. If this surrendered, or annulled, or it may have exwere not true, one's responsibility for not car- pired by its terms. If it were not in effect rying out his agreement with another would at the time of the accident to appellee, Wilhave no limit, as the ill effects of his failure to liams, it makes no difference when it was do so could be taken advantage of by one claim- issued to Joshlin, and there would be no ing to be affected, even to a remote degree. liability thereon. As the pleading must be Cardwell v. Atwater, 15 R. 570; Triplett v. construed strongest against the pleader, the Helm, 5 J. J. Mar. 651; Powers v. Eva, 2 presumption is that the policy was taken out Bibb. 317; Mobile Life Ins. Co. v, Brame, 95 long before the accident and had expired by U. S. 754; Carter v. Ætna Life Ins. Co., 91 its terms, or at least that it had become inPac. (Kan.) 178. Manifestly the doctrine of privity can have no place in the consideration operative as to Joshlin at the time of the of this case, as it is excluded by the terms of accident. the policy, which make it a contract exclusively

For the reasons indicated, the judgment is for the benefit of the assured, and confines to reversed, for proceedings consistent herewith.


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