The Court of Civil Appeals for the First Supreme Judicial District have certified for our determination the following questions:
"This action was brought by J.B. Parker Co. against the Aetna Life Insurance Company of Hartford, Conn., to recover of the defendant a stipulated indemnity for injuries received by the insured during the life of a certain policy of accident insurance issued by the company to William Shelvy and which had been assigned by the said Shelvy to the plaintiffs; and as a penalty the further sums of 12 per cent of the amount of the indemnity due under said policy and a reasonable attorney fee, which was alleged to be $50; the total amount for which judgment was prayed aggregating $371 and costs. William Shelvy intervened in the suit as plaintiff and alleged that the amount due under the policy had been assigned to the plaintiffs J.B. Parker Co. to secure an indebtedness to them of $225; he adopted the pleadings of plaintiffs and joined in the prayer for judgment against the defendant, and asked that the balance after deducting the amount due by him to the plaintiffs be directed to be paid to him. The defendant pleaded as a defense to a recovery upon the policy the right of subrogation to the claim of Shelvy against the railway company for damages on account of the injuries for which indemnity was claimed, and its deprivation of the right by the settlement of Shelvy with the railway company and the release of it from all liability for said injury. A demurrer by plaintiffs to so much of the answer as set up this defense was sustained and it was stricken out. Shelvy was injured, as alleged, while in the service of the St. Louis Southwestern Railway Company of Texas, by getting caught in a turntable of said company while cleaning the tank of an engine and was disabled for twenty-eight weeks and five days, for which time the company was liable to pay him indemnity at the rate of $10 a week, amounting to $287.14. Judgment was rendered in favor of all the plaintiffs as prayed for.
"1. Does article 3071 of the Revised Statutes, authorizing the recovery of 12 per cent of the loss and an attorney fee as a penalty for failure of the insurance company to pay within the time specified in the policy apply to accident insurance?
"2. Did the court err in sustaining the plaintiffs' demurrer to the *Page 294 answer setting up defendant's right of subrogation to the claim of Shelvy against the railway company and its discharge by reason of the fact that it had been deprived of this right by Shelvy's act in settling with and releasing the railway company from further liability to him?"
The court have accompanied the certificate with a copy of an opinion in the case delivered by the chief justice, from which it is to be inferred, that after certifying the questions they had affirmed the judgment of the trial court in part and reversed it in part, and a motion for rehearing had been filed.
We are of the opinion that both questions should be answered in the negative. As to the first, the opinion of the Court of Civil Appeals satisfactorily states the grounds upon which our ruling is based.
We also adopt the opinion of that court upon the second question. But in addition to what is there said, we think it is to be observed that so far as the right of subrogation is concerned, accident insurance is more analogous to life insurance than it is to either marine or fire insurance; and it has been held that it does not apply in case of life insurance. Insurance Co. v. Brame, 95 U.S. 754; Connecticut Insurance Co. v. Railway Co., 25 Conn. 265. We think also that the case of Bradburn v. Railway Co. (L.R. 10, Ex. 1) has some bearing upon the question. The point there decided is that "in an action for injuries caused by defendant's negligence, a sum received by the plaintiff on an accidental insurance policy can not be taken into account in reduction of damages."
We have not succeeded in finding any case directly in point.
CORRECTION OF CLERICAL ERROR. In our opinion in this case in speaking of the action of the Court of Civil Appeals we inadvertently said, that "after certifying the questions they had affirmed the judgment of the trial court in part and reversed it in part," etc. The use of the word "after" is clearly a clerical error. It should have been,"before certifying the questions," etc. As the opinion now stands, it leads to the inference that the Court of Civil Appeals had decided the case while the question was pending in this court, which does that court an injustice. We therefore deem it proper to correct our opinion so as to read "before" instead of "after" in the phrase just quoted. It is accordingly so ordered.
Filed March 9, 1903. *Page 295