Anderson v. Southern Surety Co.

Citations

• 107 Kan. 375
• 191 P. 583
• 21 A.L.R. 761
• 1920 Kan. LEXIS 80

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Insurance — Indemnity Insurance — Negligent Defense of Actibn by the Insurer — Liability of Insurer. Where an insurance company insures an employer of labor against loss or damage on account of injuries sustained by his employees, takes charge of the defense in an action brought by an injured workman, and through negligence in not properly conducting the defense judgment is obtained against the employer for an amount in excess of that named in the policy, the insurance company is liable to the employer for the damages thus occasioned.</p> <p>2. Same — Action Against Insurer for Damages for Its Negligence — Unavailable Defenses. In an action brought by such an employer to recover from the insurance company the damages thus sustained, where the company could have set up as a defense in the action by the employee that he and the plaintiffs were engaged in using dynamite in a coal mine in violation of law, and that the injury to the employee was thereby occasioned, that fact cannot be set up by the insurance company as a defense.</p> <p>3. Same — Contributory Negligence of Insured. The employer is not guilty of contributory negligence where he employed an attorney to assist in the defense, who had no control over the litigation, and who only did those things he was required to do.</p> <p>4. Same — Causes of Action Stated in Petition Not Inconsistent. Cause's of action based on acts of negligence alleged in a petition are not inconsistent with each other when they can stand together, when one does not defeat the other, arid the truth of one does not disprove the truth of the other.</p>