Georgia Life Ins. v. Mississippi Cent. R. , 116 Miss. 114 ( 1917 )

Ethridge, J.,

delivered the opinion of the court.

This is an appeal from the chancery court of Adams county, from a judgment against the appellant in favor of the appellee for five thousand dollars, on a policy issued by the Great Southern Accident & Fidelity Company,- to the Mississippi Central Eailroad Company, which policy was assumed by the Georgia Life Insurance Company.

The policy covered a period from the 11th day of November, 1911, to the 11th day of November, 1912. By his policy the insurance company, hereafter called the “company,” agreed to indemnify the assured railroad company against loss for damages within the amounts named in the policy, on account of bodily injuries or death accidentally suffered by any employee of the assured while engaged in the occupations called for by the policy. Clauses B, C, D, and H of the policy are involved in this litigation, and reads as follows:

“B. Subject to the above conditions the company’s liability for loss from an accident resulting in bodily-injuries, including death resulting therefrom, to one person is limited to five thousand dollars ($5,000), and, subject to the samé limit for each person, the company’s total liability for loss from an accident resulting in bodily injuries, including death resulting therefrom, to more than one person is limited to ten thousand dollars ($10,000).

“C. In addition to these limits, however, the company will at its own cost (court costs and attorney’s fees being considered part thereof) investigate all accidents and defend all suits, even if groundless, of which notices are given to it as hereinafter required, unless the company shall elect to settle the same, or to pay over to the assured the limits provided for in the preceding paragraph, provided that if the company elects to pay the assured the limit provided for, such payment must be made before tbe return day of tbe suit.

“D. It is further agreed and understood that when tbe company bas tbe opportunity to settle tbe claim of any injured employee within tbe limit ’ designated in this policy, viz. five thousand dollars ($5,000), and fails to take advantage of such opportunity for settlement wibin tbe time provided in tbe preceding paragraph, tbe company shall thereafter protect tbe assured from any judgment not in excess of ten thousand dollars ($10,000), which may be rendered in favor of tbe injured employee. "Rut this stipulation is of no effect, unless tbe opportunity of compromimse as herein mentioned is submitted to tbe company by tbe injured employee, or bis duly authorized representative, within tbe period mentioned in tbe preceeding paragraph.”

“II. Tbe company is not responsible for any settlement made, or any expense incurred by tbe assured, unless such settlements or expenditures are first specifically authorized in writing by tbe company, provided the assured at tbe time of tbe accident bas tbe right to provide necessary medical or surgical assistance for immediate relief and to provide means for tbe immediate comfort of tbe party or parties injured.”

J. M. Winslow, an employee of tbe assured, engaged in an occupation covered by tbe policy, and in tbe service of tbe assured, was killed on tbe 14th day of August, 1912; said Winslow being a brakeman, and leaving as bis only heirs a widow and a posthumous child. Two suits were filed against tbe assured, tbe appellee, in tbe circuit court of Lincoln county during September, 1912; one suit being filed by D. M. Higdon, administrator óf tbe deceased, under tbe federal law; and tbe other by Mrs. Areola Winslow, tbe widow, who also was a minor, by D. M. Higdon as next friend, under tbe state law. Tbe first named of said suits was tried on tbe merits, in tbe month of January, 1913, and resulted in a judgment against tbe assured for twenty-five thousand dollars. The other suit was dismissed. An appeal was prosecuted from the judgment for twenty-five thousand dollars, hut was afterwards compromised for ten thousand dollars; the appellee contributing seven thousand dollars, and the appellant three thousand dollars, of the said amount of ten thousand dollars. The appellee contended, at the time of settlement, that the appellant was liable under the policy to the extent of ten thousand dollars, under clauses B and D, and the appellant insisted that it was only liable to the extent of five thousand dollars under clause B of the policy', and declined to pay the same without a full release. In this situation of the matter the settlement was effected, the appellee surrendering two thousand dollars of the admitted liability in order to leave open appellants liability for the other five thousand dollars under said clause D of the policy; and this suit was entered for the five thousand dollars under clause D, and does not involve the primary liability of five thousand dollars under the other clauses of the policy.

' When the suits were brought in the circuit court, the administrator of the deceased and the widow, by herself and her father as next friend, entered into a contract with H. V. Wall, an attorney, in which contract Wall was assigned a one-half interest in the litigation, which contract was filed as required by the statute with the papers in the cause.

After the filing of these suits, and on or about the 26th day of October, 1912, shortly before the birth of the child, Mrs. Winslow, the mother of the deceased, wrote the assured, the railroad company, as follows:

“I have had a talk with my daughter-in-law, and she says she is willing to accept the compromise you stated to me, if you cannot make this sum larger. Now, if possible, please fix this for her regardless of her father and lawyer. See what can be done as soon as possible, as she is in need of the money.”

Thereupon the claim attorney of the railroad company, the assured, wrote the insurance company as follows:

“Under the terms of our liability contract with your company, yon are hereby formally notified that the above-styled causes, both growing out of the killing of Brakeman Winslow at Wanilla, Miss., August 14, 1912, can be settled for five thousand dollars.”

The general attorneys of the insurance company replied to this letter under date of October 3, 1912, as follows:

“We have your favor of the 28th inst., advising us that the case of D. M. Higdon, administrator, and Mrs. Areola Winslow, against the Mississippi Central Railroad Company, can be settled for five thousand dollars. We are unwilling to make this offer.”

It is the contention of appellee that, under the terms of the contract of insurance, this constituted an offer of compromise which must be accepted by the insurance - company, or else that the insurance company would be liable for all under ten thousand dollars that might be recovered against the railroad company. If the proposition had been made to the insurance company - by the legal representatives of the deceased, or if it had been made by such representatives or attorney of such representatives to the railroad company and transmitted to the insurance company there would have been merit in this contention and if such had. been the case the judgment of the chancery court would be upheld. But we are dealing with the completed case, with all matters that the record shows in connection therewith, and from the whole record it appears that there was no such offer of compromise in fact made, and that if the insurance company had undertaken to settle for thé five thousand dollars it could not have done so.

The concluding clause of paragraph D, bearing on the compromise' proposition, to wit, “but this stipulation is of no effect, unless the opportunity of compromise as herein mentioned is submitted to the company by the injured employee, or his duly authorized representative, within the period mentioned in the preceding paragraph,” was evidently put in the contract to prevent just such judgments as was rendered here. The proposition of compromise, under the terms of the policy, is to be submitted to the insurance company by the injured employee or his duly authorized representative within the period mentioned. The evident purpose and intention of this contract, requiring the acceptance of a proposition made- in good faith, was that it should be tendered in such manner that the insurance company could accept it.

The railroad company did not abandon its efforts to compromise the litigation against it referred to above, but continued its efforts to bring about a settlement, and all the circumstances following must be taken into consideration. It is manifest from the letters of the railroad company to the insurance company that neither Mr. Higdon, the administrator, nor Mr. Wall, the attorney (having a half-interest in the matter), had been consulted about a compromise, and it plainly appears from the correspondence that the railroad company knew that Mr. Higdon and Mr. Wall would not consent to a compromise, and no proposition had ever been obtained from them justifying an assumption that a compromise could be effected. On October 31, 1912, the claim agent of the assured wrote the insurance company as follows:

“Mrs. Areola Winslow, widow of E. M. Winslow, deceased, a former employee who was killed at Wanilla, and for whose death two suits for damages are now pending in Brookhaven, Miss., has agreed to accept five thousand dollars in settlement for herself and her child which was born a few days ago. Her father, who is the administrator, and her attorneys know nothing of this proposition of settlement, and, no doubt, would oppose it if they heard of it.”

Inasmuch as the administrator and the attorney were necessary parties to make a binding settlement of this litigation, it is manifest at that time there could be no settlement, and the insurance company was under no obligation to send out representatives to run down the possible compromise.

Afterwards the agent of the assured saw one of the attorneys who had been retained by Mr. Wall to assist in the trial of the cause, and represented to such attorney that a settlement could be made but for the fact that the attorney, Mr. Cassidy, stood in the way. Mr. Cassidy replied in substance that he had never stood in the way of any settlement, and, while he would not recommend a settlement' on this basis, he would not oppose it if Mrs. Winslow desired to settle for said amount.

Thereafter, about the 7th of December, the claim attorney of the assured called upon the widow and secured a letter, as follows:

“I want, if possible, to arrange a .settlement of my case against your company wihout further trouble or litigation. I am willing to compromise for five thousand dollars and should like to hear from you at your earliest convenience. ’ ’

The attorney for the railroad company thereupon took up with the attorneys of the insurance company the proposition of settling for this amount, and was told that Mr. Wall had a half interest in the matter and that his consent and an order of court on behalf of the minors would be necessary to procure such a settlement. Mr. Wall, the assignee of the half interest, learning of this effort to compromise, wrote the assured’s claim attorney as follows:

“My client, Mrs. Areola Winslow, has just seen me relative to the claim she has against the Mississippi Central Railroad Company. I do not appreciate the method resorted to by the Mississippi Central Railroad Company, through its representatives in trying to persuade my client to settle her claim without consulting her attorney. In regard to a letter she was persuaded to write you, she authorizes me to say that the settlement, if any, must be made with me (H. V. Wall); I am the man who has the contract with her, and I am the one authorized to speak for her. She will not accept your proposition, nor neither will I accept it. The case will be set for trial Thursday, January 7, and we will expect you to be ready for trial. I always try to treat everybody fair, and expect fair treatment at the hands of other people, but in this case I have not received it. Fortunately, my client desires to take my advice instead of the advice of the Mississippi Central Eailroad Company.”

The agent of the railroad company went to Atlanta and held a conference with the attorneys of the issuranee company, in which conference the attitude of Mr. Wall was made known to the insurance company. It was also made known to the insurance company that Mr. Higdon would not consent to the settlement. It appears clearly from the testimony of Mr. Higdon, Mr. Wall, and Mr. Cassidy, that the settlement for five thousand dollars weuld not have been entertained by them. It is true that Mr. Cassidy testifies that if the client desired to settle he would not stand in the way, and Mr. Wall and Mr. Higdon admmitted that they might possibly have settled if Mr. Cassidy had advised them to do so as a lawyer. It is manifest from the whole testimony that Mr. Cassidy would not have advised settlement as a legal proposiion, and it would not have been entertained by Mr. Wall and Mr. Higdon after it was made. Mrs. Winslow and her child both being minors, it would have been necessary to procure a decree of the chancery court authorizing a settlement, and there is no pretense in the record that the matter was ever submitted to the chancery court or the chancellor, and no evidence that would warrant an assumption that it could have been compromised. The railroad company, the assured, had never procured an offer of compromise from any party having power to make it, and there was no offer made, either to the railroad company or the insurance company, by those competent to make such offer that would make it necessary for the- insurance company to accept such compromise. We think the clause above quoted — the concluding clause of paragraph D of the contract — is a material and vital portion of the contract and must be given its proper meaning and effect as a part of the contract, and that giving it this effect precludes the appellee’s recovery from the appellant, under the state of facts shown in this record. For the reasons indicated, the judgment of the learned chancery court is reversed, and judgment will be entered here for the appellant.

Reversed, and judgment here.