East Carolina Ry. Co v. Md. Cas. Co

• Decision Date: 03 October 1907
• Citation: 145 N.C. 114,58 S.E. 906
• Court: North Carolina Supreme Court
• Parties: EAST CAROLINA RY. CO. v. MARYLAND CASUALTY CO.

58 S.E. 906

(145 N.C. 114)

EAST CAROLINA RY. CO.

v.MARYLAND CASUALTY CO.

Supreme Court of North Carolina.

Oct 3, 1907.

Insurance — Indemnity — Construction of Contract—Scope op Liability.

Under a contract to indemnify an employer against liability for accidents to employe's, provided "this policy does not cover loss for liability for injuries as aforesaid to, or caused by, any person unless his wages are included in the estimated wages named in the schedule, " the wages of the employe causing the injury, as well as those of the employe injured, must be so included, to make the indemnity company liable.

Appeal from Superior Court, Edgecombe County; Biggs, Judge.

Action by the East Carolina Railway Company against the Maryland Casualty Company. Judgment for defendant Plaintiff appeals. Affirmed.

This action was brought by the plaintiff to recover $1,999, alleged to be due on a contract to indemnify it against liability to its employes, which was the amount theretofore adjudged to one J. G. Andrews, an employe of the plaintiff, on account of injuries received by the negligence of Henry Clark Bridgers, another of its employes, in a suit brought by him against the plaintiff. The policy of the defendant indemnifies "against loss from common-law or statutory liability; for damages on account of bodily injuries, fatal or nonfatal, accidentally suffered within the period of this policy by any employe or employes of the assured, while on duty at the places and in the occupations mentioned 'in this application, in and during the continuance of the work described in this application." But the liability is limited by the following clause: "This policy does not cover loss for liability for injuries as aforesaid to, or caused by, any person unless his wages are included in the estimated wages named in the schedule, and he is on duty at the time of the accident in an occupation hereinafter described at the place or places mentioned in the schedule." It appeared that Andrews' compensation as an employe of the plaintiff was included in the estimated wages named in the schedule which is a part of the policy, while Bridgers' were not so included. Issueswere submitted to the jury and answered by consent, as follows: "(1) Was J. G. Andrews, at the time of the injuries for which he obtained the judgment in controversy, an employe of the plaintiff, and was he on the pay roll and his wages included in the estimated wages named in the schedule? Yes. (2) Were the injuries to J. G. Andrews for which the judgment was obtained caused by an employe of the plaintiff, and, if so, who? Yes, Henry Clark Bridgers, who was at the time running as engineman, and who held the office of president and general manager. (3) Were the wages of such employe included in the estimated wages named in the schedule? No." The court was of the opinion that, upon the verdict, the defendant was not liable to the plaintiff upon the contract, and so adjudged. The plaintiff thereupon appealed.

John L. Bridgers, for appellant.

Jacob Battle, for appellee.

WALKER, J. (after stating the facts as above). The policy upon which this suit was brought is most clearly restricted to cases where the injury results to an employe of the insured from the negligence of some other employe, whose wages were on the pay roll of the company and included or considered in the estimate upon which the premium was computed. Parties who are sui juris must be permitted to make contracts for themselves, and the court, in the absence of any equitable element invoking its protection in favor of one or the other of the parties, must take the contract as it finds it and so construe it. It is true that, in passing upon contracts of insurance or indemnity like the one now in hand, the courts have adopted certain canons of interpretation, one of which is that the contract will be liberally construed in favor of the assured, so as not to defeat, without a clear necessity, his claim for indemnity. When doubt arises by reason of the language employed to express the agreement, so that it admits of two interpretations, the courts, as a general rule, adopt that one which, without any violence to the words selected by the parties, will sanction the claim and cover the loss. Goodwin v. Assur. Society, 97 Iowa, 226, 66 N. W. 157, 32 L. R. A. 473, 59 Am. St Rep. 411; Ken-drick v. Ins. Co., 124 N. C. 315, 32 S. E. 728, 70 Am. St. Rep. 592. The leading idea which controls in such cases was well stated by Judge Douglas in Grabbs v. Ins. Co., 125 N. C. 399, 34 S. E. 506: "The extraordinary development of insurance and its necessary adaptation to the varying and complicated business relations of a progressive age tax the utmost ability of the courts. But, while different conditions may require the application of different rules, one great principle must always be kept in view, and that is the ultimate object of all insurance. While we should protect the companies against all unjust claims, and enforce all reasonable regula tions necessary for their protection, we must not forget that the primary object of all insurance is to insure. We cannot permit insurance companies by unreasonable stipulations to evade the payment of...