Concrete Materials Co. v. Employers Mut. Liability Ins. Co. of Wis.
| Decision Date | 13 July 1945 |
| Docket Number | 8732. |
| Citation | 19 N.W.2d 523,70 S.D. 535 |
| Parties | CONCRETE MATERIALS CO. v. EMPLOYERS MUT. LIABILITY INS. CO. OF WISCONSIN et al. |
| Court | South Dakota Supreme Court |
Eugene C. Mahoney and Tom Kirby, both of Sioux Falls, for plaintiff and appellant.
Davenport Evans & Hurwitz, of Sioux Falls, for defendant and respondent Employers Mut. Liability Ins. Co. of Wisconsin.
T. R. Johnson, of Sioux Falls, for defendant and respondent, Roy johnson.
Plaintiff brought this action under the provisions of the Uniform Declaratory Judgments Act (SDC 37.01) for construction of policies of insurance issued by defendant company. The cause was submitted to the trial court on an agreed statement of facts. Judgment was rendered in favor of defendants and plaintiff appeals.
Defendant Roy Johnson was an employee of plaintiff Concrete Materials Company. He instituted an action seeking damages from his employer for injuries which he alleged were sustained by reason of the negligence of the employer in failing to provide a safe place in which to work. The employee alleged that as a result of such negligence he contracted the 'occupational disease known as pneumoconiccis or silicosis.' Defendant employer in that case took the position that the complaint described 'an injury by accident' compensable only under the provisions of the Workmen's Compensation Law (SDC 64). After an adverse ruling on its motion to dismiss the complaint in that action the defendant employer appealed. The order of the trial court was affirmed. Johnson v. Concrete Materials Co., S.D., 15 N.W.2d 4.
The agreed facts disclose that defendant Employers Mutual Liability Insurance Co. of Wisconsin denied that the damages claimed in the suit instituted by Johnson were covered by its policies of insurance and has refused to undertake the defense of such action.
It is conceded that the policies issued by defendant insurance company were effective during the period from September 14 1938 to April 1, 1943. They were substantially in the same form and contained the following provisions:
'Employers Mutual Liability Insurance Company of Wisconsin * * * Does hereby agree with this employer * * * as respects personal injuries sustained by employees, * * *.
'One (a) 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 instalments thereof as they become due, * * *.
'One (b) 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 United States of America or the Dominion of Canada. * * *
'Three To defend, in the name and on behalf of this employer, any suits or other proceedings which may at any time be instituted against him on account of such injuries, including suits or other proceedings alleging such injuries and demanding damages or compensation therefor, although such suits, other proceedings, allegations or demands are wholly groundless, false or fraudulent.
'Four To pay all costs taxed against this employer in any legal proceedings defended by the company, all interest accruing after entry of judgment and all expenses incurred by the company for investigation, negotiation or defense.'
The endorsements referred to in the policies and attached thereto contained the following provision:
The demand made by Johnson in his suit brought against the Concrete Materials Company is not a demand for compensation. Johnson v. Concrete Materials Co., supra. The demand is not within the coverage provided by paragraph One (a) and the question presented, therefore, is whether such demand is within the coverage provided in paragraph One (b). It is contended by appellant employer that a policy of insurance must cover the entire liability of the employer to his employees and that the endorsement which specifically states that 'this policy does not afford insurance under paragraph One (b) with respect to occupational disease' is void. This argument is based upon the provisions of SDC 31.3307 which provides:
A statute must be construed according to its manifest intent, and that intent must be derived from the statute as a whole, as well as other enactments upon the same subject, and not from any single word, phrase or clause unless the word, phrase or clause excludes any other conclusion than that indicated by it.
The first law in this state providing for Workmen's Compensation was Chapter 376, Laws 1917. This statute (§§ 46 to 54, inclusive) required employers subject to its provisions to insure their liability in a corporation, association or organization approved by the State Department of Insurance or in lieu thereof to enter into an agreement with their workmen to provide a plan of compensation. There was also enacted at that session Chapter 277 authorizing the formation of mutual employers liability associations by employers for the purpose of insuring themselves and other persons or firms as may be subscribers thereto against liability for compensation payable under the workmen's compensation law or for purpose of insuring against loss or damage by sickness,...
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