The opinion
On Petition for Rehearing.
The petition for rehearing must be denied.
1. The defendant’s duty to the plaintiff, as set out in the first and second counts of the declaration, does not depend upon whether it did or did not obligate itself in the policy to prepare and defend the Plodde suit, or to settle the same. As pointed out in our opinion handed down in this case on February 27, 1917, the plaintiff’s right of action in the first count is based upon the ground that defendant entered upon the preparation and defense of the suit, and in the second count that it entered upon the task of settling it, and that in each case it was negligent in what it undertook to do. As each count sounds in tort, and is based upon a duty imposed by law, it is wholly immaterial whether the defendant was or was 'not under a contractual duty to prepare and defend the suit or to settle the same.
[14] 2. The clause in the policy providing that “the liability of the company in respect to any one employé suffering injury or death shall in no case exceed the sum of five thousand dollars” is not a defense to the action. The loss with reference to which the defendant agreed to indemnify the plaintiff in the policy, and with reference to *583 which its liability was not to exceed $5,000, was a loss sustained by the plaintiff through its negligent failure to perform a duty it owed to its employés. The plaintiff, however, in this action, is not seeking to recover from the defendant indemnity against loss which it sustained due to its own negligence, but to recover damages which it says it has sustained because of the defendant’s negligence, a matter as to which tire indemnity provided for in the policy and the limitation therein stipulated for have nothing to do. The limitation is upon .the defendant’s obligation to indemnify the plaintiff, not upon its liability for damages occasioned the plaintiff through the defendant’s negligence.
Petition denied.