Columbia Paper Stock Company v. Fidelity & Casualty Company of New York

Decision Date19 January 1904
Citation78 S.W. 320,104 Mo.App. 157
PartiesCOLUMBIA PAPER STOCK COMPANY, Respondent, v. FIDELITY & CASUALTY COMPANY OF NEW YORK, Appellant
CourtMissouri Court of Appeals

Appeal from St. Louis City Circuit Court.--Hon. D. D. Fisher, Judge.

AFFIRMED.

STATEMENT.

The statement of facts submitted by appellant has been accepted by respondent, and, commending such practice, therefore, with slight modifications, is adopted in the decision of the case.

This is an appeal from a judgment against appellant on a claim arising under a so-called "employer's liability" insurance policy. The petition, which recited the issuance and the substance of the policy, sets up that one of plaintiff's employees sued it in the circuit court of Jackson county, Missouri, for an alleged common law liability "for injuries suffered by her in said premises, to-wit, from accidental blood poisoning caused by contact with material used in plaintiff's business" and the recovery of a judgment by said employee of $ 1,650 the payment thereof by plaintiff and the refusal of defendant to indemnify plaintiff therefor. The contracting clause of the policy, which was filed with the petition, is an agreement to indemnify, under certain conditions "against loss from common law or statutory liability on account of bodily injuries, fatal or non-fatal, accidentally suffered within the period of this policy by any person or persons while within the premises hereinafter mentioned." The only condition of the policy appealed to in defense of this action is that covered by number one of the general agreements embodied in the policy, which reads as follows:

"1. The assured upon the occurrence of an accident shall give immediate notice thereof with the fullest information obtainable at the time, to the home office of the company at New York city, or to its duly authorized local agent. He shall give like notice with full particulars of any claim that may be made on account of such accident, and shall at all times render to the company all co-operation and assistance in his power."

The answer admitted the issuance and delivery of the policy admitted that plaintiff had been compelled to pay the said judgment, and that defendant refused to indemnify plaintiff therefor; denied that said judgment was recovered on account of accidental injuries as alleged, and set up as special defense the failure of the defendant to give immediate notice of the alleged accident, upon the happening thereof, or at any time prior to the institution of suit by the said employer. The reply denied the new matter set up in the answer.

Plaintiff after introducing the policy, introduced evidence tending to show that one of its servants, Anna Nickel, on May 30, 1900 made claim against plaintiff by instituting suit against it on account of bodily disease caused by the handling of infected rags, or of wall paper containing arsenic, in the ordinary course of defendant's business, the said Anna Nickel being at said time employed by it on its premises in Kansas City, and recovered judgment for $ 1,650 on said claim, which judgment was affirmed on appeal by the Kansas City Court of Appeals in June, 1902, and which with interest and costs amounted at the time of payment to $ 1,848.10. Plaintiff introduced the pleadings in the Nickel case, the petition which charged defendant (plaintiff herein), with negligence in delivering to plaintiff to be sorted and cleaned a bale of steaming hot material consisting of waste paper mixed with wall paper, and also a sack of waste paper, old bandages and rags, and pieces of decaying human flesh, all more or less impregnated with some poisonous drug or drugs made up from the cleaning of a hospital, and that she thereby was poisoned and made violently sick by coming in necessary personal contact with said material, and that Bright's disease and dropsy resulted therefrom, and her health became permanently broken down and ruined to her damage in the sum of five thousand dollars, for which the suit was brought. The answer set up that the injuries were the result of risks of the employment which plaintiff had assumed. Plaintiff also introduced in evidence the instructions given to the jury in the Nickel case; those for plaintiff told the jury that the employer was bound to use reasonable means to protect the health of his employees; that if they found her health had been injured through failure to use such means a recovery might be had for such injury to her health, and that plaintiff did not assume in such employment any unknown peril to her health. Plaintiff likewise introduced in evidence the opinion of the Kansas City Court of Appeals, 95 Mo.App. 226.

Defendant introduced evidence tending to show that the bodily injury sustained by said Anna Nickel was acute kidney disease or dropsy engendered by absorption of poison resulting from exposure in handling infected rags or wall paper in the regular course of her employment, and without violent external injury of any kind, which disease had its apparent inception on April 14, 1900, in an attack of vomiting which was witnessed by the assistant forewoman of plaintiff under whom said Anna Nickel worked on the said premises, at which time the said Anna Nickel gave up her employment, and went home and no more returned to plaintiff's place of business; that on April 24th, 1900, the forewoman of plaintiff, under whom the said Anna Nickel worked for plaintiff, was notified that said Anna Nickel was ill, and that she claimed that her sickness was caused by handling infected paper and rags at defendant's place of business; that the duties of said forewoman were merely to direct employees where to work and how to do their work, and she had no power to engage or discharge employees; that plaintiff's chief office and place of business was at St. Louis, Missouri; that it did not notify defendant of the said injury to or illness of said Anna Nickel on said 24th day of April, or before that time, and that defendant was not notified of such occurrence until May 31, 1900, nor until after suit had been instituted by the said Mrs. Nickel to recover damages for the said injury.

Instructions in the form of propositions of law, (jury having been waived and trial had by the court sitting as a jury) were requested by both parties, and exceptions duly saved as indicated. The finding and judgment of the court was in favor of plaintiff for $ 1,935.85, and motion for a new trial duly filed was subsequently overruled and appeal perfected to this court.

Judgment affirmed.

Percy Werner for appellant.

(1) A disease produced by a known cause, as acute kidney disease or dropsy engendered by absorption of poison, resulting from exposure due to handling infected paper or rags, in the regular course of one's employment, is not a bodily injury accidentally suffered within the purview of the employer's policy in evidence in this case. Bacon v. United States & M. Acc. Assn., 123 N.Y. 304; 26 N.E. 399; Sinclair Admx. v. Maritime Passgr. Assn. Co., El. & El. 478; Dozier v. Fidelity & Casualty Co., 46 F. 446, 449. (2) The right of recovery upon a contract of employer's liability insurance does not pertain to all liability which as master assured may incur. The injury from the consequences of which he is thus protected must not only be one for which he is legally chargeable, but must also be covered by the provisions of the policy. 11 Am. & Eng. Ency. of Law (2 Ed.), 11. (3) A disease produced by a known cause can not be considered as accidental. Dozier v. Fidelity & Cas. Co., 46 F. 446, 449; Bliss on Ins., section 399; May on Ins. (3 Ed.), section 519. (4) A condition in an employer's liability insurance policy requiring that the assured shall give immediate notice to the insurance company upon the occurrence of an accident, is a condition precedent. Underwood Veneer Co. v. Lon. G. & A. Co., 75 N.W. 996; Travellers Ins. Co. v. Myers, 57 N. E. (Ohio) 458; National Const. Co. v. Travellers Ins. Co., 57 N. E. (Mass.) 350; Smith & Dove Co. v. Travellers Ins. Co., 50 N. E. (Mass.) 516; Green v. Northwestern Live Stock Ins. Co., 54 N.W. 349; Edwards v. Insurance Co., 75 Pa. St. 37; Victorian, etc., Co. v. Australian, etc., Co., 19 Victorian Law Reports 139; Wythe v. Manufacturers Acc. Co., 15 Canada L. I. 86; London G. & A. Co. v. Sinwy, 66 N. E. (Ind.) 481; Rooney v. Maryland Cas. Co., 67 N. E. (Mass.) 882; Ins. Co. v. Kyle, 11 Mo. 278, 289; McCullough v. Ins. Co., 113 Mo. 606; McFarland v. Assn., 124 Mo. 204. (5) Courts will not vary the stipulation of parties by introducing equities for the relief of the insured against their own negligence, especially where the court can not put the insurer in as good position as if the agreement had been performed. N. Y. Life Ins. Co. v. Stratham, 93 U.S. 24; Klein v. Ins. Co., 140 U.S. 88.

Judson & Green for respondent.

(1) The poisoning of Anna Nickel while employed upon respondent's premises by the handling of infected rags or wall paper containing arsenic, negligently placed before her by respondent for assortment, was a "bodily injury accidentally suffered" within the terms of the policy sued upon. (a) Because it comes fairly within the meaning and intent of those terms when construed in view of the obvious purpose for which the policy was issued to respondent. Lovelace v. Travelers Protective Association, 126 Mo. 104; Brown v. Passenger Assurance Co., 45 Mo 221; Insurance Co. v. Melick, 65 F. 168; Isitt v. Passenger Assurance Co., 22 Q. B. Div. 504; Freeman v. Mercantile Accident Association, 155 Mass. 351; Western Commercial Travelers Ass'n v. Smith, 40 L. R. A. 653; McCarthy v. Travelers Ins. Co., 8 Biss. (U.S.) 362; Barry v. Accident Ins. Co., 131 U.S. 100; Peck v. Equitable Accident Association, 52 Hun (N. Y.) 225; ...

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