Action by the Humes Construction Compa

CASUALTY CO. (Supreme Court of Rhode Island. March 10, 1911.)

1. INSURANCE (§ 6161/4*) -EMPLOYER'S LIABILITY INSURANCE-ACTIONS-DEFENSES - ESTOPPEL.

Where insurer, under an employer's liability policy permitting it so to do, and with full knowledge of the facts, took entire charge of a personal injury suit against insured, and conducted the same both in the trial and appellate courts, it could not thereafter claim that it was not liable for the judgment recovered, on the ground that the injured party was not an employé of insured within the meaning of the pol[Ed. Note.-For other cases, see Insurance, Dec. Dig. § 6162.*]

icy.

2. INSURANCE (§ 645*) - EMPLOYER'S LIABILITY INSURANCE - ACTIONS PLEADING "WAIVER"- "ESTOPPEL."

That, in an action on an employer's liability policy, plaintiff alleged that defendant "waived" the right of objection that a claim was not covered by the policy, did not restrict it to a recovery in accordance with the doctrine of waiver, if the facts showed an estoppel; the terms "waiver" and "estoppel" being sometimes loosely used interchangeably, especially with reference to situations arising under insurance policies.

[Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 1632-1645; Dec. Dig. § 645.*

For other definitions, see Words and Phrases, vol. 3, pp. 2494-2496; vol. 8, p. 7654; vol. 8, pp. 7375-7381, 7831, 7832.]

3. ESTOPPEL (§ 52*) - "QUASI ESTOPPEL"

"ELECTION.

The term "quasi estoppel" has been applied to certain legal bars which are in some respect analogous to estoppel in pais, and which have the same practical operation as an estoppel in pais, but which nevertheless differ from that form of estoppel in essential particulars. The term includes the doctrine of "election," the principle which precludes a party from asserting to another's disadvantage a right inconsistent with a position previously taken by him, and certain forms of waiver.

[Ed. Note.-For other cases, see Estoppel, Dec. Dig. § 52.*

For other definitions, see Words and Phrases, vol. 3, pp. 2329-2336; vol. 8, pp. 7647, 7648.]

Exceptions from Superior Court, Providence and Bristol Counties; Christopher M. Lee, Judge.

pany. There was a decision for plaintiff, and defendant excepts. Exceptions overruled, and case remitted to superior court, with directions to enter judgment on the decision.

Gardner, Pirce & Thornley (Charles R. Haslam, of counsel), for plaintiff. Edwards & Angell (William A. Spicer, Jr., of counsel),

for defendant.

Rescript.

PER CURIAM. The defendant's exceptions are overruled, and case is remitted to the superior court, with direction to enter judgment on the decision. Opinion will be filed later.

Opinion.

SWEETLAND, J. This is an action of the case in assumpsit, based on an employer's liability insurance policy issued by the defendant to the plaintiff. The amended declaration contains three counts, together with the common counts.

On October 23, 1906, the defendant company, which was engaged in the business of furnishing employer's liability insurance, issued to the plaintiff corporation, then doing business under the name of Humes, Cruise & Smiley Company, a policy of insurance, whereby the defendant agreed to indemnify the plaintiff for one year against loss from liability imposed by law upon the assured for damages arising solely from injuries caused by any accident and suffered by any employé, whose compensation was given in a certain schedule, at any of the places mentioned in said schedule, and also to undertake at its own cost the settlement of any claim and the defense of any suit arising from such injuries. The policy also provides that the assured shall give immediate notice to the defendant of any such accident, and of any claim made as a result of it; that, in case of suit being brought, all papers and information relating to it shall be given to the defendant, and thereupon the defendant company "shall at its own cost undertake, on behalf of and in the name of assured, the settlement of such claim or the defense of such suit, or the prosecution of any appeal deemed advisable by the company"; and that the assured "shall not, without the written consent of the company, interfere in any negotiation for settlement, nor in any legal proceedings, nor incur any expenses other than for imperative surgical relief at the time of the accident."

On December 7, 1906, while this policy of insurance was in force, one Dennis A. Driscoll was injured while working on a building which the plaintiff was constructing at North Attleboro, the same being one of the places mentioned in said schedule. It appears from the testimony that Driscoll was one of seven plasterers furnished by a Mr. Cunningham to the plaintiff, with the understanding that the latter should take full charge of them and pay their wages, and that Mr. Cunningham should receive 50 cents a day for the use of these men. The plaintiff paid the wages of these men, including Driscoll's, furnished them material with which to work, and through its foreman gave orders to them as to their work. The wages of Driscoll were included in the pay roll, on the basis of which the annual premium on this policy was computed and paid. The plaintiff gave the defendant notice of the accident, and of the claim of Driscoll against the plaintiff, and of the suit subsequently brought by Driscoll against the plaintiff in the superior court. After Driscoll commenced suit the defendant in the case at bar investigated the accident and considered the question as to whether Driscoll was an employé of this plaintiff and was working as such at the time of the accident. After such considera

tion this defendant, through its attorneys, without reservation, assumed the entire conduct of the defense of the Driscoll suit in all proceedings in the superior court, and before this court upon exceptions. In the superior court the jury returned a verdict for the plaintiff, Driscoll, in the sum of $1,600, which verdict was approved by this court upon exceptions. In the determination of the exceptions in the suit of Driscoll against the plaintiff in the suit at bar, this court considered whether Driscoll was a fellow servant of certain employés of this plaintiff, and decided that Driscoll was not an

employé of this plaintiff. Upon execution this plaintiff was compelled to pay the judgment against it in the Driscoll suit. The defendant refused to reimburse the plaintiff for the amount paid upon the Driscoll judgment, on the ground that such judgment was not covered by the said policy of indemnity issued by the defendant to the plaintiff.

This suit is brought on said policy for reimbursement and indemnity. Jury trial was waived in the case at bar, and it was tried

this court upon exceptions to the ruling of the superior court upon a demurrer to the third count of the amended declaration, to the ruling of the superior court at the trial excluding certain testimony offered by the defendant, and to the final decision of the superior court in favor of the plaintiff.

The third count of the amended declaration in this case, after setting out the terms of the policy upon which suit is brought, alleges the accident to Driscoll, but does not allege that Driscoll was an employé of the plaintiff at the time of the accident. Said third count further alleges that the defendant was notified of the accident, and of the commencement of the Driscoll suit, and "that the defendant corporation, with full knowledge of the facts of said case, and especially of the facts relating to the employment and work of the said Dennis A. Driscoll, and without any protest or reservation whatsoever, and in accordance with the provisions of said policy, undertook the defense of said legal proceedings in the name and in behalf of the said plaintiff corporation," and, further, "that because and by reason of the defendant's assuming full control of the defense in the said action brought by the said Dennis A. Driscoll against the present plaintiff corporation as aforesaid, with full knowledge of the facts and without protest or reservation of any kind whatsoever, the defendant corporation waived any and all right of objection that said claim and action was not covered by the said policy, and the said defendant corporation should not now be permitted to disclaim liability under the aforesaid policy of insurance because the said Dennis A. Driscoll, at the time of the aforesaid accident, was not an employé of the plaintiff corporation, or because of any other

reason whatsoever." The defendant demurred to said third count on several grounds, all based upon the fact that it does not appear by the count that Driscoll was at the time of the accident an employé of the plaintiff corporation, or that Driscoll's claim was covered by said policy.

By the allegations of said third count the relation of this plaintiff and defendant with regard to the Driscoll suit arose entirely from said policy of indemnity. The defendant's obligation under said policy was to indemnify the plaintiff against loss from liability imposed by law upon it for damages arising from injuries caused by accidents to its employés. When the said Driscoll was injured, the defendant was notified of that fact, and later of his suit against the plaintiff. The question then arose and was considered by these parties whether Driscoll was or was not an employé of the plaintiff. All the facts as to the employment and work of Driscoll at the time of the accident to