Frankfort Marine, Accident & Plate Glass Insurance v. Witty

Opinion by Mr. Chief Justice Mitchell, The contract sued upon was entirely clear. The situation of the parties when they made it was this: appellants were held by a verdict of $9,000 in favor of an employee for injuries received through their negligence, and against this liability the appellee was bound to indemnify them to the extent of $5,000, [572] the limit of its policy. The verdict being thought excessive, the question of a reduction, or a new trial, was considered by the parties, with the result of the agreement now sued on, that appellants undertook to pay four-ninths of whatever sum should be finally paid to the injured employee, either by way of compromise or upon another verdict. The consideration to both parties was the chance that the sum each would have to pay in the end, would be less than its proportion of the existing verdict. But there was also a chance the other way, and by the. agreement appellee assumed an unlimited obligation for five-ninths of what should be ultimately recovered by the injured employee, although that might exceed its whole liability under the policy. A compromise settlement was in fact effected with the injured employee, and under the agreement the appellants escaped with less than half the amount for which they had been liable when it was made. It comes with very ill grace from them now to try to repudiate it. It is argued that the appellee was already bound to go on and endeavor to get a new trial and therefore there was no consideration for the present contract. A sufficient consideration has already been shown. But there was no such obligation to go further. By its policy it was bound to indemnify the appellants up to the amount of the policy, and on the other hand it had the entire management and control of the suit and could terminate its liability at any time by paying the appellants the full amount of the policy. Whenever therefore it became convinced that further proceedings would be useless or against its interests it was not bound to go on, but could stop with the present certainty rather than risk the contingent future. The charge of fraud in the making of the contract hardly requires notice. The day after the verdict the appellants and the agent of the appellee met to discuss the matter, and the latter after reporting that he was advised by counsel that the amount was excessive volunteered the opinion that a new trial could only be had by the same counsel who had tried the case, and that a release of appellee by appellants on the payment of the full amount of the policy would not protect the former from the claim of the injured employee on the verdict. The agent was not a lawyer, his statements were not made in the pres [573] ence of counsel nor were they represented as coming from counsel. They were simply opinions expressed by a layman upon matters of law, during the negotiations leading to the new agreement. Appellants could have consulted their own counsel, and in the affidavit of defense, say they desired to do so, but he being out of town they yielded ■ to the urgency for a speedy decision of the matter and made the agreement. In doing so they acted on their own judgment, and there is nothing shown in the case which a jury could have been permitted to find was fraud which vitiates the contract. Judgment affirmed.