Fidelity & Cas. Co. of New York v. Cook
| Decision Date | 25 October 1938 |
| Citation | 301 Mass. 305,17 N.E.2d 181 |
| Parties | THE FIDELITY AND CASUALTY COMPANY OF NEW YORK v. BENJAMIN C. COOK. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
September 20, 1938.
Present: FIELD, C.
J., DONAHUE LUMMUS, QUA. & RONAN, JJ.
Insurance, Premium Workmen's compensation insurance.
Under a workmen's compensation policy of insurance requiring payment of a premium based on "the entire remuneration earned . . . by all employees . . . engaged in the business operations described in . . . declarations together with all operations necessary, incident or appurtenant thereto or connected therewith," a dealer in ice who carried on as one business the selling, harvesting and storing of ice and used the same employees interchangeably in all the operations, was required to pay a premium based on wages paid for harvesting and storing, as well as for selling, ice, although the insurer had refused to issue a policy covering harvesting and storing and the declarations of the policy expressly excluded those operations.
CONTRACT. Writ in the Superior Court dated July 20, 1935. The action was heard by Burns, J., who found for the plaintiff in the sum of $208.70. The defendant alleged exceptions.
W. A. O'Hearn for the defendant. P. Stoelzel, for the plaintiff, submitted a brief.
The defendant, a dealer in ice, obtained from the plaintiff insurance under the workmen's compensation act for one year ending February 1, 1934. He not only sold ice, but also harvested and stored it. The plaintiff refused to issue to the defendant a policy covering harvesting and storing. The "declarations," upon which the estimated premium was computed, expressly excluded harvesting and storing. The policy declared, what both parties apparently knew to be untrue unless read with the exclusion of harvesting and storing, that "this employer is conducting no other business operations at this or any other location not herein disclosed." But the policy covered all payments required under the workmen's compensation act because of the obligation "imposed upon or accepted by this employer," the defendant, and insured and secured "to this employer the rights, privileges, and immunities of an insured or insured person under" the workmen's compensation act. The policy was to "apply to such injuries so sustained by reason of the business operations described in said declarations which for the purpose of this insurance,...
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