Allen v. Raftery

• Decision Date: 05 October 1943
• Parties: Floyd Allen, Employee, Respondent, v. William C. Raftery, doing business as Sylvester Raftery's Sons Painting Company, Employer, and Standard Accident Insurance Company, Insurer, Standard Accident Insurance Company, Insurer, Appellant
• Court: Missouri Court of Appeals

174 S.W.2d 345

237 Mo.App. 542

Floyd Allen, Employee, Respondent, v. William C. Raftery, doing business as Sylvester Raftery's Sons Painting Company, Employer, and Standard Accident Insurance Company, Insurer, Standard Accident Insurance Company, Insurer, Appellant

Court of Appeals of Missouri, St. Louis District

October 5, 1943

Appeal from the Circuit Court of the City of St. Louis; Hon. James F. Nangle, Judge.

Affirmed.

J D. Leritz for appellant.

(1) The employer, under the law, may insure all, or any part, of his workmen's compensation risk or operation, or may carry all, or any part, himself. Mo. Workmen's Comp. Act, Chap 29, R. S. Mo. 1939; Secs. 3713, 3715, 3716, 3717, R. S. Mo 1939; Employer's Lia. Assur. Corp. v. Arthur Morgan Trucking Co. (Mo. App.), 156 S.W.2d 8; Ollanik v. Lynn Meat Co. (Mo. App.), 93 S.W.2d 1073. (2) Appellant's insurance policy did not cover the risk or operation, to-wit, building cleaning, in which respondent was engaged at the time he was injured. It covered only the operations and activities of the employer classified and described in the policy. Bouvier's Law Dictionary, Third Revision by Rawle; Webster's Standard Dictionary, Printed 1927; O'Connor v. Columbia Ins. Co., 169 Mo.App. 150, 152 S.W. 396; Newhill v. Union Ind. Co. (Mo. App.), 60 S.W.2d 658; National Auto Ins. Co. v. Ind. Accdt. Comn. (Cal.), 39 P.2d 477; Burnett v. Palmer Lipe Paint Co. (N. C.), 4 S.E.2d 507; U. S. F. & G. Co. v. Bullard Gin & Mill Co. (Texas), 245 S.W. 720; Levine v. East N. Y. Elec. Corp., 206 N.Y.S. 527; Pallotta's Case (Mass.), 146 N.E. 235; Clare v. Malia, Mank Com'r et al. (Ariz.), 84 P.2d 456; Buice v. Service Mutual Ins. Co. (Texas), 90 S.W.2d 42; Continental Cas. Co. v. Woerpel et al. (Wis.), 208 N.W. 882; National Auto Ins. Co. v. Ind. Comm. (Cal.), 32 P.2d 356.

Tyree C. Derrick for respondent.

(1) There is sufficient competent evidence in the record upon which to base the award. Liechty v. Kansas City Bridge Co. (Mo.), 162 S.W.2d 275; De May v. The Liberty Foundry Co., 327 Mo. 495, 37 S.W.2d 640; Kelly v. Howard, 233 Mo.App. 474, 123 S.W.2d 584; Everard v. Woman's Home Companion Reading Club, 234 Mo.App. 760, 122 S.W.2d 51; Tokash v. General Baking Co., 349 Mo. 767, 163 S.W.2d 554; Buckner v. Quick Seal, Inc., 233 Mo.App. 273, 118 S.W.2d 100; Schmitz v. Sellers & Marquis Roofing Co. (Mo. App.), 117 S.W.2d 623; Chubb v. Skelgas Co., 346 Mo. 22, 139 S.W.2d 904; Biswell v. St. Louis San Francisco R. R. Co. (Mo. App.), 49 S.W.2d 203; Yancey v. Egyptian Tie & Timber Co. (Mo. App.), 95 S.W.2d 1230; Leilich v. Chevrolet Motor Co., 328 Mo. 112, 40 S.W.2d 601; Brollier v. Van Alstine (Mo. App.), 163 S.W.2d 109. (a) Cases from other jurisdictions, cited by appellant, furnish no factual precedent for the question of fact in the case at bar. Welch v. Reiling (Tenn.), 99 S.W.2d 216; Hallums v. Gavrin, 298 N.Y.S. 790, 252 A.D. 709; Emery's case, 271 Mass. 46, 170 N.E. 839; Fidelity & Casualty Co. v. Hill Const. Co., 164 A. 16, 11 N. J. Misc. 58; First Nat. Trust & Savings Bank of San Diego v. Industrial Accident Comm., 213 Cal. 322, 2 P.2d 347; Smart v. Radetsky, 86 Colo. 93, 278 P. 609; City of Henderson v. Royal Indemnity, 227 Ky. 746, 14 S.W.2d 213; Maryland Casualty Co. v. W. C. Robertson Co. (Texas), 194 S.W. 1140; Western Indemnity v. Toennis (Texas), 250 S.W. 1098; Frint Motor Car Co. v. General Accident, Fire & Life Assurance Corp., Ltd., of Perth, Scotland, 171 Wis. 109, 180 N.W. 121; Fidelity & Casualty Co. of New York v. Cook (Mass.), 17 N.E.2d 181; Southern Underwriters v. Green (Texas), 132 S.W.2d 447; Constitution Indemnity Co. v. Shytles, 47 F.2d 441; S. R. Zagst & Co. v. Southern Surety, 86 So. 828, 148 La. 328; Harding v. Ind. Comm. of Utah, 83 Utah 576, 28 P.2d 182.

OPINION

Bennick, C.

This is a proceeding under the Workmen's Compensation Law (Secs. 3689-3766, R. S. Mo. 1939, Mo. R. S. A., secs. 3689-3766). The appeal is by the insurer, Standard Accident Insurance Company, upon the sole ground that its insurance policy issued to the employer did not cover the risk or operation in which the employee was engaged at the time his injury was received, which was the steam cleaning of a building for which the employer had a contract.

The employer is one William C. Raftery, a painting, papering, and decorating contractor, who does business as Sylvester Raftery's Sons Painting Company. The latter was the trade name under which the employer's father had carried on the business until his death in 1929, at which time the employer, who had been his father's foreman, took it over under an arrangement with his brothers that he would support their mother out of the proceeds of the business, and they in return would assist him with anything in the way of money and equipment that he might require. One brother, Richard, served as foreman for the employer, while a second brother, Sylvester, was engaged in the independent business of cleaning buildings under the name of Acme Cleaning Company. In 1940 the Acme Cleaning Company business was transferred by Sylvester to his son Lawrence, with Sylvester himself continuing in business under the name of Raftery-Egan Painting Company.

On May 1, 1940, appellant, Standard Accident Insurance Company, issued to the employer the policy of insurance involved in this proceeding, which was a standard workmen's compensation and employers' liability policy for a term of one year, with an endorsement specifically including the Missouri Workmen's Compensation Law within the obligation of the insuring agreement.

In view of the fact that the sole question on this appeal is whether the policy covered the particular risk or operation in which the employee was engaged at the time his injury was received, a proper consideration of the contentions of the respective parties requires that special regard be had for those provisions of the policy defining the nature and extent of the coverage afforded.

By the first paragraph of the insuring agreements, which paragraph appears at the very outset of the policy, appellant obligated itself as follows:

"To pay promptly to any person entitled thereto, under the Workmen's Compensation Law and in the manner therein provided, the entire amount of any sum due, and all installments thereof as they become due, (1) to such person because of the obligation for compensation for any such injury imposed upon or accepted by this employer under . . . the Workmen's Compensation Law, and (2) for the benefit of such person the proper cost of whatever medical, surgical, nurse or hospital services, medical or surgical apparatus or appliances and medicines, or, in the event of fatal injury, whatever funeral expenses are required by the provisions of such Workmen's Compensation Law. It is agreed that all of the provisions of each Workmen's Compensation Law covered hereby shall be and remain a part of this contract as fully and completely as if written herein, so far as they apply to compensation or other benefits for any personal injury or death covered by this policy, while this policy shall remain in force."

As to employees covered, it was provided that "this agreement shall apply to such injuries sustained by any person or persons employed by this employer whose entire remuneration shall be included in the total actual remuneration for which provision is hereinafter made, upon which remuneration the premium for this policy is to be computed and adjusted."

As to locations covered, it was provided that "this agreement shall apply to such injuries so sustained by reason of the business operations described in said declarations which, for the purpose of this insurance, shall include all operations necessary, incident or appurtenant thereto, or connected therewith, whether such operations are conducted at the workplaces defined and described in said declarations or elsewhere in connection with, or in relation to, such workplaces".

It was further provided that the agreement was subject to certain conditions, among which was a condition stating the basis of the premium, which was that "the premium is based upon the entire remuneration earned, during the policy period, by all employees of this employer engaged in the business operations described in said declarations together with all operations necessary, incident or appurtenant thereto, or connected therewith, whether conducted at such workplaces or elsewhere in connection therewith or in relation thereto."

But while initially contemplating that the premium should be based upon the entire remuneration earned by all employees of the employer engaged in the business operations "described in said declarations," etc., it was nevertheless recognized that other operations might be undertaken by the employer during the policy period; and to meet this contingency, in the event other operations should in fact be undertaken, the following clause was immediately added to the condition:

"If any operations as above defined are undertaken by this employer but are not described or rated in said declarations this employer agrees to pay the premium thereon, at the time of the final adjustment of the premium in accordance with Condition C hereof, at the rates, and in compliance with the rules, of the Manual of Rates in use by the company upon the date of issue of this policy. At the end of the policy period the actual amount of the remuneration earned by employees during such period shall be exhibited to the company, as provided in Condition C hereof, and the earned premium adjusted in accordance therewith at the rates and under the conditions herein specified. If the earned premium, thus computed, is greater than the advance premium paid, this employer shall immediately pay the additional amount to the company; ...