Fuller Brothers Toll Lumber & Box Co. v. Fidelity & Casualty Company, of New York

• Citation: 68 S.W. 222,94 Mo.App. 490
• Parties: FULLER BROTHERS TOLL LUMBER AND BOX COMPANY, Respondents, v. FIDELITY & CASUALTY COMPANY, of New York, Appellant
• Decision Date: 05 May 1902
• Court: Court of Appeals of Kansas

68 S.W. 222

94 Mo.App. 490

FULLER BROTHERS TOLL LUMBER AND BOX COMPANY, Respondents, v. FIDELITY & CASUALTY COMPANY, of New York, Appellant

Court of Appeals of Missouri, Kansas City

May 5, 1902

Appeal from Jackson Circuit Court.--Hon. E. P. Gates, Judge.

AFFIRMED.

Judgment affirmed.

Harkless O'Grady & Crysler for appellants.

The judgment should have been for the defendant and the court erred in giving a peremptory instruction to find for the plaintiff, for the reason that under the policy contract and the undisputed evidence, there was no liability on the part of the defendant in that the policy of indemnity did not cover accidents or injuries happening while riding on an elevator. Prendergast v. Ins. Co., 67 Mo.App. 429; Miss. v. Wheelihan, 68 N.W. 878; Piano Co. v Wallace, 84 Mo.App. 378; Glass v. Fraternal Ass'n, 112 F. 495; Atkins v. Van Buren, 77 Ind. 447; Pepper v. Harris, 73 N.C. 365.

Arthur F. Smith and Frank Hagerman for respondents.

(1) Judgment was properly directed for the plaintiff. (2) Rules by which this exception should be construed: (a) The most liberal construction is indulged to the insured. Brown v Assurance Co., 45 Mo. 221; La Force v. Ins. Co., 43 Mo.App. 518; Etherington v. Ins. Co., 55 Mo.App. 129; Hale v. Ins. Co., 46 Mo.App. 508, 511; Hoffman v. Accident Indemnity Co., 56 Mo.App. 301. Burnett v. Ins. Co., 68 Mo.App. 343; Norman v. Ins. Co., 74 Mo.App. 456. (b) That written terms prevail over printed conditions is a general rule of law. Mascott v. Ins. Co., 69 Vt. 116; s. c., 37 A. 255; 16 Am. and Eng. Ency. of Law (2 Ed.), 864.

OPINION

SMITH, P. J.

--This is an action which was based on an employee's liability policy issued by defendant, an incorporated insurance company, to the plaintiff, also a business corporation. The provisions of the policy with which we have to do in reviewing the case now before us are to the effect that the defendant agreed to indemnify the plaintiff "against . . . liability for damages on account of bodily injuries . . . suffered by any employee or employees of the assured while on duty within the factory . . . mentioned in the schedule hereinafter given . . . resulting from the operation of the trade or business described in the said schedule . . . The premium is based on the wages to be expended by the assured during the period of this policy. If the wages actually paid exceed the sum stated in the schedule hereinafter given, the assured shall pay the additional premium earned; if less than the sum stated, the company will return to the assured the unearned premium, pro rata . . . The statements contained in the schedule hereinafter given are hereby made a part of this contract. . . ."

The schedule referred to in the preceding extract is as follows:

"1. Name of Employer: Fuller Bros. Toll Lumber & Box Co. 2. Address of Employer: Kansas City, Kans. 3. The location of all factories, shops or yards are given below. Kansas avenue and Adams street. 4. Trade or business is Box Factory. 5. The operations are those usual to the trade or kind of business described above, except as follows: . . . 6. No power is used, except as follows: Steam. 7. There are three boilers. Their type is H. Y. Their age is . . . 8. There are . . . elevators. Their type is . . . 9. The maker's name is . . . 12. The estimated payroll includes the wages of all executive officers, office men, pieceworkers employed in the factories or shops and all other employees, drivers included, except as follows: drivers included--no officers. . . . 16. The estimated average number of employees in each class or occupation; the estimated average annual wages in each description or class are given in the following list:

"THE EMPLOYEES.

Places where

Estim'd

shops, facto-

Description of Occupation.

Estim'd

total an-

ries or yards

Rmks.

Avg. No.

n'l w'ges

are located.

On all employees engaged

Kansas ave-

in and about the box fac-

nue and Adams

tory.

Street, Kansas

City, Kansas.

17. The total expenditure for wages for the last calendar year ended December 31, 1898, was about fifty thousand dollars or less. 18. The estimated expenditure for wages for the term of this policy is fifty thousand dollars. The premium is eighty cents for each $ 100 of wages."

Among the special agreements contained in the policy was the following: "B. This policy does not cover loss from liability for injuries, as aforesaid, caused by or happening in or about any elevator plant, or by the explosion, collapse or rupture of steam boilers, unless such elevator plant and boilers are enumerated in the schedule hereinafter given, nor for injuries to or caused by drivers, horses or vehicles, nor for injuries to or caused by any person unless his wages are included in the estimated wages hereinafter set forth, and he is engaged, at the time of the accident, in an occupation hereinafter described."

The plaintiff was engaged in operating a wooden box manufactory. One Hobart was an employee of plaintiff at its factory, and while there performing the duties of his employment he was hurt by the fall of an elevator. He sued the plaintiff for the injury and recovered judgment, which was subsequently satisfied by the latter. The plaintiff here claims that under the policy, it is entitled to be indemnified against this loss. The defendant insists that as Hobart's injuries happened about an elevator of the plaintiff's factory, and as such elevator was not enumerated in the schedule, as required by paragraph B. of the contract, there is no liability on the policy.

It is apparent from the terms employed in the ensuing clause and the schedule of the policy that the contract thus resulting entitles the plaintiff to indemnity against liability for any injury suffered by any one or all of its employees while on duty within its factory, no difference whether or not engaged in or about its engines, boilers or elevators. The contract to indemnify plaintiff was about as broad and comprehensive as language could well make it. On the face of the contract, and from the conceded facts of the case, the plaintiff was entitled to the indemnity accorded him by the judgment of the court, unless owing to some collateral fact or matter he was precluded.

The defendant contends that as Hobart was injured while engaged in the performance of his duties in or about an elevator in use in plaintiff's factory, and as said elevator was not enumerated in said schedule as required by paragraph B. of the contract, that the injury was not covered by the policy. It is clear that the defendant would be liable but for this exception, which was a limitation on the defendant's liability. If the defendant cared to restrict or limit its general undertaking, it could, of course, do so by inserting therein appropriate provision for that purpose. But such provisions, whether inserted or left out, would in no way effect the validity of the contract.

It appears that in the present case the defendant's general agent, Rush, took upon himself the performance of the duty of writing out the plaintiff's application. He was familiar with the plaintiff's factory; he knew there were elevators there, and the use to which they were put. If he had desired to limit or restrict the defendant's liability in any way, he could have done so in writing the application and the policy. While the policy as printed, provided that it was not to cover loss from liability for injuries happening about an elevator plant, unless such elevator was enumerated in the schedule, the defendant's general agent, in filling up the blank schedule, omitted to make any enumeration or specification of the elevators in the factory, and thus waived and dispensed with the requirement that the elevators should be enumerated in the schedule. The defendant had the right, by its waiver, to strike from the policy any of its exceptions. If the defendant chose to exempt the plaintiff from this requirement of the policy, it could certainly do so. As the defendant's general agent in writing the application, not for plaintiff but for his company, necessarily inserted in it every requirement, exception and condition that he cared to have embodied in the contract, and as, in doing so, he...