Columbia Cas. Co. v. Hare

• Decision Date: 30 July 1934
• Citation: 116 Fla. 29,156 So. 370
• Parties: COLUMBIA CASUALTY CO. v. HARE et al.
• Court: Florida Supreme Court

156 So. 370

116 Fla. 29

COLUMBIA CASUALTY CO. v. HARE et al.

Florida Supreme Court

July 30, 1934

Rehearing Denied Sept. 13, 1934.

En Banc.

Error to Circuit Court, Pinellas County; John W. Bird, Judge.

Action by Margaret Louise Hare, joined by her husband, S. Roger Hare, as next friend, against the John H. Bull Company, Inc. in which, after judgment was recovered against defendant and execution returned nulla bona, an affidavit in garnishment was filed against the Columbia Casualty Company. To review a judgment for plaintiff against the garnishee, it brings error.

Affirmed.

BROWN J., dissenting.

COUNSEL William C. Brooker, of Tampa, for plaintiff in error.

Bradley & Wehle, of St. Petersburg, for defendants in error.

OPINION

BUFORD Justice.

The writ of error in this case is to review a judgment in favor of the defendants in error against the plaintiff in error.

These parties will be hereinafter referred to, the defendants in error as the plaintiffs, and the plaintiff in error as the surety company.

John H Bull Company, Inc., was a contractor performing certain alterations and repairs on a building known as the Equitable building. Bridwell was alleged to be an independent contractor doing some work on the same building. While the work was in progress, some pieces of stone or hard mortar fell from the building where hoints were being chiseled out to the sidewalk below. Margaret Louise Hare, passing along the sidewalk, stepped on a particle of the mortar, fell, and sustained injuries. At that time a policy of insurance which had been issued to John H. Bull Company, Inc., by the surety company was in full force and effect. The material obligations of the policy of indemnity insurance were as follows:

'Does Hereby Agree with the assured named and described as such in the Declarations forming a part hereof, respecting accidental bodily injuries including death at any time resulting therefrom, as follows:

'1. To insure the assured against loss by reason of the liability imposed by law upon the Assured for damages on account of such injuries, and to pay and satisfy judgments finally establishing Assured's liability in actions defended by the Company, all subject to the limits expressed in Paragraph 9 of the Declaration;

'2. To investigate accidents involving such injuries, to negotiate all claims made as may be deemed expedient by the Company, and to defend suits for damages, even if groundless, brought on account of such injuries in the name and on behalf of the Assured, unless or until the Company shall elect to effect settlement thereof;

'3. To pay (a) all costs taxed against the Assured in any legal proceeding defended by the Company according to the foregoing paragraph, and interest accruing up to the date of payment by the Company upon the Company's share of the judgment rendered in connection therewith, (b) all premium charges on attachment or appeal bonds required in such legal proceedings, (c) all expenses incurred by the Company for investigation, negotiation and defense; and

'4. To reimburse the Assured for the expense incurred in providing such immediate surgical and medical relief as is imperative at the time of the accident.

'5. The foregoing agreements shall apply only to such bodily injuries as are sustained or alleged to have been sustained during the policy period defined in said Declaration by any person, not employed by the Assured, as the result of an accident----

'(a) Occurring on or about the premises described in Declaration 4 while used or occupied by the Assured for the purpose of conducting the business or work described in Declaration 5, or

'(b) Caused by the Assured's employees, who are employed in the Assured's business or work conducted at said premises, while such employees are engaged elsewhere in performing their duties, but excluding erection, installation or repair work and the demonstration of mechanical devices unless specifically covered in Declaration 5.

'Said Agreements are made in consideration of the Declarations forming a part here of and the payment of the premium herein provided.

'The Foregoing Agreements are Subject to the Following Conditions:

'Limits of Liability.

'A. The Company's liability to one or all Assured under the provisions of Paragraph 1 of the Insuring Agreements is limited to the amounts and as expressed in Declaration 9, which shall be in addition to the liability assumed under paragraphs 3 and 4 of the Insuring Agreements.

'Exclusions

'B. This Policy Shall Not Cover Bodily Injuries or Death as Follows: (1) Arising out of any work performed under a specific contract undertaken by the Assured, if a contractor, after the contract has been completed; (2) Caused by work performed for the assured by independent contractors, provided however, that if the Assured is not a contractor then the work of ordinary alternations and repairs as described in Declaration 5 (a), although done by contractors for the Assured, shall be covered by this Policy without additional premium charge; (3) Caused or suffered by any person or persons working for or employed by the Assured in violation of law as to age, or if there is no legal agelimit, under the age of fourteen years; (4) Caused by aircraft; or by any automobile, automotive equipment, draught animal, team or other vehicle (or the loading or unloading thereof), owned or hired by the Assured, while such vehicle or equipment is being used or operated elsewhere than upon premises occupied by and under the control of the Assured or public ways immediately adjoining; (5) Caused by the consumption or use elsewhere than upon the premises used by the Assured of any article or product manufactured, handled or distributed by the Assured unless such article or product and the distribution thereof is specifically described in the Declarations and a premium provided therefor; (6) Caused by any elevator or hoisting device (except derricks, Dumbwaiters, block and tackle, and mining hoists) its shaft or hoistway or the equipment or appliances used in connection therewith; but if the Assured is a contractor this policy shall cover the use of hod or material hoists or other hoisting appliances which are incidental to the Assured's contract work covered hereby, except the bodily injuries or death sustained by any person while in or on any elevator, material hoist or other platform hoisting device, or while entering upon or alighting from such elevator or hoisting device shall not be covered unless the policy is so extended by special endorsement attached hereto.'

Plaintiffs sued John H. Bull Company, Inc., and recovered a judgment. Execution being returned nulla bona, affidavit in garnishment was filed against the surety company.

The pleadings when settled presented the question as to whether or not the surety company was liable under its policy to John H. Bull Company, Inc., so that the plaintiffs could recover from the surety company the amount of the judgment against John H. Bull Company, Inc.

Jury was waived and the case was tried before the court, under the following stipulation of facts:

'1. That whereas, the court has this day entered an order striking the first rejoinder of the garnishee to the plaintiff's third replication to the garnishee's fifth Answer to the writ of garnishment heretofore issued herein, said rejoinder having been entered in this cause on the 21st day of November, 1933, and said second rejoinder filed on said day having been this day withdrawn by counsel for the garnishee, both parties hereto do hereby waive the right to a trial by a jury and consent to the trial of the issues of fact and law in this cause by the Honorable John U. Bird, Circuit Judge of the Sixth Judicial Circuit, said trial to be held forthwith upon the presentation and filing of this stipulation.

'2. That said parties further stipulate that the following facts are conceded to be true by all parties to the cause, and proof thereof is hereby waived, and the Court is requested and authorized to take said facts into consideration as having been properly offered in evidence and proved at the trial of this cause:

'(a) That the declaration in this cause was based on an alleged cause of action charging the defendant, John H. Bull Company, Inc., its agents or servants, with acts of negligence on or about December 22nd, 1931, resulting in injury to the plaintiff, for which said action was instituted.

'(b) That the pleas and additional pleas in said cause specifically raised the issue that the negligence by reason of which the plaintiff was injured and brought suit was brought about and caused not by the acts of John H. Bull Company, Inc., its agents or servants, but by the acts of an independent contractor, S. F. Bridwell, and that there was no actionable negligence on the part of John H. Bull Company, Inc., its agents or servants, but that if there was any negligence causing the injuries of said plaintiff, Margaret Louise Hare, it was the negligence of said S. F. Bridwell, an independent contractor, and not the negligence of John H. Bull Company, Inc.

'(c) That issue was joined on said pleas and a trial of said cause held on the 22nd day of May, 1933, at which time testimony was offered by plaintiff and defendant on the question amongst others, of the existence of the independent contractorship alleged in said pleas, and whether or not the said S. F. Bridwell was an independent contractor, for whose acts the defendant was not liable, and the jury returned a general verdict for the plaintiff in the sum of $500.00, for which judgment was thereupon on said 22nd day of May, 1933, duly entered in favor of the plaintiff and against the defendant John H. Bull Company, Inc., in the sum of $500.00...