Evansville Ice & Storage Co. v. Fid. & Cas. Co. of New York

• Decision Date: 08 March 1916
• Docket Number: No. 8966.,8966.
• Court: Indiana Appellate Court
• Parties: EVANSVILLE ICE & STORAGE CO. v. FIDELITY & CASUALTY CO. OF NEW YORK.

61 Ind.App. 194

111 N.E. 812

EVANSVILLE ICE & STORAGE CO.

v.FIDELITY & CASUALTY CO. OF NEW YORK.

No. 8966.

Appellate Court of Indiana, Division No. 1.

March 8, 1916.

Appeal from Superior Court, Vanderburgh County; Fred M. Hostetter, Judge.

Action by the Fidelity & Casualty Company of New York against the Evansville Ice & Storage Company. From an adverse judgment, defendant appeals. Affirmed.

Cunningham & Ortmeyer, of Evansville, for appellant. Funkhouser & Funkhouser, of Evansville, for appellee.

FELT, P. J.

This appeal involves the construction of a contract, or policy for liability insurance, issued by appellee to appellant. The question presented is further narrowed by appellant's admission in its brief that “the sole question presented is whether or not the policy covered the injury to appellant's employé.” The suit was brought by appellee, to recover certain premiums alleged to be due it on certain insurance policies issued to appellant. To the complaint appellant filed a third paragraph of answer, and also a counterclaim, in which the facts set out are substantially identical with those of the third paragraph of answer.

The substance of the facts averred in the third paragraph of answer and in the counterclaim is: That appellant held a policy, duly issued to it by appellee, by the terms of which it agreed:

(1) To indemnify appellant “against loss from the liability imposed by law upon the assured for damages on account of bodily injuries or death suffered through the assured's negligence, and as the result of an accident occurring while the policy is in force (a) by any employé or employés of the assured while within the factory, shop, or yard described in the said schedule, or upon the sidewalk or other ways immediately surrounding the same provided for the use of such employés or the public, in and during the operation of the trade or business described in the said schedule. *** (2) To defend in the name and on behalf of the assured any suit brought against the assured to enforce a claim, whether groundless or not, for damages on account of bodily injuries or death suffered, or alleged to have been suffered, through the assured's negligence, by the persons described in subsections A and B of the preceding paragraphs at the place and under the circumstances described, and as the result of an accident occurring while this policy is in force.”

That the policy contains the following provisions to wit:

“(c) This policy does not cover loss from liability for, or any suit based on, injuries or death suffered or caused by any persons in connection with the making of additions or repairs to or alterations in any building, structure, or plant; or in connection with the construction, wrecking, or demolition of any building, structure or plant, or any part thereof; but ordinary repairs when made by employés of the assured whose compensation is included in the estimate set forth in the schedule are permitted.”

It is also averred, in substance, that appellant paid to appellee the full amount of the premium on said policy, and has complied with all the conditions thereof on its part; that during the period covered by said policy one Charles Smith was in the employ of appellant as a laborer in and about the ice and cold storage plant referred to in said policy, and was one of the employés contemplated and covered by the terms thereof and on whose account, in part, the premium of said policy was estimated and paid; that on the 15th day of May, 1911, appellant had contracted for the construction of an addition to its said plant, involving the installation therein of certain appliances and machinery, among which was a certain ammonia coil, consisting of a heavy coil of iron pipe of great weight; that it was delivered to appellant's plant on a flat car; that said Smith was not engaged in the construction of said addition or in the installation of the appliances and machinery therein, but was engaged generally as a day-laborer by the defendant to...