American Mut. Liability Ins. Co. of Boston v. Duesenberg
| Decision Date | 17 May 1938 |
| Docket Number | 27014. |
| Citation | 14 N.E.2d 919,214 Ind. 488 |
| Parties | AMERICAN MUT. LIABILITY INS. CO. OF BOSTON v. DUESENBERG. |
| Court | Indiana Supreme Court |
Appeal from Hancock Circuit Court; Arthur C. Van Duyn, Judge.
James L. Murray, of Indianapolis, for appellant.
Chas M. Wells and Harvey Hartsock, both of Indianapolis, for appellee.
This is an appeal from a judgment against the appellant, rendered when it refused to plead further upon the overruling of its demurrer to the appellee's amended complaint. The demurrer was upon two grounds, namely, that the court had no jurisdiction of the subject matter of the action, and that the amended complaint did not state facts sufficient to constitute a cause of action. The first assignment has been waived by the appellant's brief, so that the sufficiency of the amended complaint is the only matter for our consideration.
The essential facts disclosed by the amended complaint are these Fred S. Duesenberg was on July 2, 1932, and for many years prior thereto had been, vice-president of Duesenberg, Inc., a corporation, and had devoted his entire time to its engineering and experimental work, for which he received a salary of $15,000 per year. He met his death in an automobile accident in the state of Pennsylvania on the above date while in the discharge of duties directed by the corporation. The appellee, as his widow, instituted a proceeding for benefits under the Indiana Workmen's Compensation Act. Burns' Ann.St.1933, § 40-1201 et seq. That proceeding was ultimately appealed to the Appellate Court of Indiana, which held that the decedent was not at the time of receiving the injuries which resulted in his death an employee of Duesenberg, Inc. within the meaning of the Compensation Act. Compensation was accordingly denied. That case is reported as Duesenberg v. Duesenberg, Inc., 1934, 98 Ind.App. 640, 187 N.E. 750, 190 N.E. 894.
After the final determination of the above-mentioned case by the Appellate Court, the appellee instituted the present action. The amended complaint charges that on August 2, 1931, the appellant herein issued to Duesenberg, Inc., a standard workmen's compensation and employer's liability policy, which was in effect at the time of the death of Fred S. Duesenberg; that the premiums for said policy were based on the remuneration paid by said corporation to its employees, including the salary of Fred S. Duesenberg as vice-president, and its other executive officers. Among the many provisions of the policy was paragraph V, as follows: (Our italics.) The appellee charged that she had expended a substantial sum for medical, hospital, and burial expenses on account of the injuries to and death of her husband, and she asked for a judgment based upon the schedule of benefits prescribed in the compensation act.
The action is not, as appellant asserts, a collateral attack on the policy, but rather a direct action thereon, although appellee's decedent was not specifically named in or made a formal party to the policy contract. If, as appellee asserts and as we shall presently determine, the terms of the policy covered the decedent at the time and under the circumstances surrounding his injuries and resulting death, appellee had a right to institute and maintain this action in her own right, as his dependent.
The contract sued on discloses on its face that it was primarily a workmen's compensation policy, purchased by Duesenberg Inc., and issued by the appellant in compliance with the statute requiring employers to carry insurance. Burns' Ann.St.1933, § 40-1601 et seq., section 16444, Baldwin's Ind.St.1934. But we do not know of any rule, statutory or otherwise, which restricts policies of this character merely to the payment of compensation benefits, or prohibits insurance companies from issuing compensation policies which assume liabilities beyond and in excess of the risks imposed by statute. If the policy here in question is to be construed strictly as compensation coverage, the basis for such construction must be found in the terms and provisions of the contract and not from any extraneous consideration. We have already quoted paragraph V of the policy, upon which appellee bases her right of recovery, and it becomes at once important to determine whether paragraph V is limited or restricted by any other provision in the contract. Appellant earnestly contends that such a restriction is to be found in clause G of the policy which reads: 'No action shall lie against the Company to recover upon any claim or for any loss under paragraph I (b) foregoing unless brought after the amount of such claim or loss shall have been fixed and rendered certain either by final judgment against this employer after trial of the issue or by agreement between the parties with the written consent of the Company, nor in any event unless brought within two years thereafter.' It will be noted that by its terms clause G applies only to paragraph I (b) and that it has no application to paragraph V. Paragraph I (b) is as follows: 'To indemnify this employer against loss by reason of the liability imposed upon him by law for damages on account of such injuries to such of said employees as are legally employed wherever such injuries may be sustained within the territorial limits of the...
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