Great Am. Indem. Co. v. Deatherage

• Decision Date: 26 November 1935
• Docket Number: Case Number: 24855
• Citation: 1935 OK 1156,52 P.2d 827,175 Okla. 28
• Parties: GREAT AMERICAN INDEMNITY CO. v. DEATHERAGE
• Court: Oklahoma Supreme Court

1935 OK 1156

52 P.2d 827

175 Okla. 28

GREAT AMERICAN INDEMNITY CO. v. DEATHERAGE

Case Number: 24855

Supreme Court of Oklahoma

Decided: November 26, 1935

Syllabus

¶0 1. Trial--Effect of Demurrer to Evidence.

Demurrer to evidence admits every fact which it, in the slightest degree, tends to prove, together with all inferences and conclusions that may be reasonably and logically drawn therefrom.

2. Insurance--Ambiguous Policy Construed Strictly Against Insurer.

Where the meaning of a policy of insurance is ambiguous, or so drawn as to be fairly susceptible of different construction, it will be construed strictly against the insurer, and that construction adopted which is most favorable to the insured.

3. Negligence--Master and Servant--Duty to Keep Premises Safe for Invitees--Liability of Owner for Injuries Caused by Indent Contractor.

One who expressly or by implication invites another to come upon his premises owes a positive duty to such other person to take reasonable care to keep his premises in such a state that the invitee shall not be unduly exposed to danger, and he cannot escape liability for an injury occasioned by its nonperformance, by showing that the immediate cause of the injury was due to the negligence of an independent contractor.

4. lnsurance--Burden on Insurer to Prove Service of Notice of Cancellation of Policy.

The burden of proof rests upon the insurer to establish the fact of service of notice of cancellation of the policy. Held, proof of mailing notice from the office of the insurer is insufficient to establish the fact of service of notice.

Appeal from District Court, Tulsa County; Harry L. S. Halley, Judge.

Garnishment proceeding by L. H. Deatherage against Atlantic Pipe & Supply Company, wherein the Great American Indemnity Company was garnished. Judgment for !plaintiff, and garnishee appeals. Judgment affirmed.

Hal Crouch land Phil Landa, for plaintiff in error.

Roy F. Ford (Leslie W. Lisle, of counsel), for defendant in error.

PER CURIAM.

¶1 This cause of action, in so far as this appeal is concerned, arose out of the garnishment proceedings instituted by the defendant in error, L. H. Deatherage, against the plaintiff in error, Great American Indemnity Company, in an attempt to realize on a judgment which the defendant in error had obtained against the Atlantic Pipe & Supply Company.

¶2 In the lower court L. H. Deatherage, as plaintiff, had obtained judgment against the Atlantic Pipe & Supply Company in the sum of $ 6,250, as damages for personal injury. Said judgment being unsatisfied, garnishment proceedings were started and garnishment summons was served upon the plaintiff in error; to, the answer of the garnishee denying liability, the plaintiff gave notice and elected to take issue. The matter was tried before the court and judgment rendered for the plaintiff against plaintiff in error for the sum of $ 5,000. Motion for new trial was overruled, and the garnishee appeals to this court.

¶3 The first question presented to the court by the plaintiff in error is: Did the court err in overruling the demurrer of the garnishee to the evidence of the plaintiff and in failing to render judgment in its favor under the terms of the policy of insurance issued by the garnishee.

¶4 The Atlantic Pipe & Supply Company, defendant in the lower court, had purchased from the garnishee a policy of insurance or indemnity bond to protect it against just such incident as occurred in this matter. The plaintiff in error contends that a technical construction of their policy of insurance precludes a recovery under this policy of a loss sustained in this class of cases. A careful examination of the policy of insurance reveals the fact that if the interpretation placed upon this policy by the company is correct, the Atlantic Pipe & Supply Company obtained no protection under this policy of insurance. The court looks with disfavor upon a technical construction of a policy that would relieve the company of its responsibility after a loss has occurred under the policy. And any question arising under the terms of the policy is construed strictly against the insurer.

¶5 In the policy the insurer agreed:

"1. To pay all sums which the assured shah become liable to pay as damages imposed by law for bodily injuries, including death at any time resulting therefrom, suffered by any person or persons not in the employ of the assured, by reason of and during the progress of the work described in Statement No. 3 of the Schedule, which work has been let or sublet by the assured to independent contractors or independent subcontractors, as the result of accidents occurring during the policy period at the location set forth in staid statement, up to an amount not exceeding the limit of liability as expressed in Statement No. 5 of the schedule of Statements.

"2. To defend in the name and on behalf of the assured all claims or suits for damages for such injuries or death for which the assured is, or is alleged to be liable, and to furnish appeal bonds (or pay the premium thereon) for an amount commensurate with the limits of the coverage hereunder in connection with such suits.

"3. To pay in addition to damages all taxed costs in any legal proceedings defended by the company, all expenses incurred by the company for investigation, negotiation or defense, all expenses incurred with the company's written consent, and all interest accruing from any judgment until the company has paid, tendered or deposited in court, such part of such judgment as does not exceed the limit of the company's liability thereon. * * *"

¶6 It was also provided that:

"This policy does not cover * * * 3. Loss from the liability for, or any suit for damages based on injuries or death, (a) caused by an employee of the assured. * * *"

¶7 The evidence is undisputed that upon the filing of the action and service upon the defendant, the insurer was notified in writing of the pendency of the action and that it refused to appear and defend the action. Under the above-quoted provisions of policy, upon the assurer being notified of the pendency of this action, it was its duty to appear and defend the action, provided, of course, that the policy was in effect, and such was its duty whether or not it was liable under the terms of the policy. The language of paragraph No. 2, quoted above, "or is alleged to be liable," clearly shows this to be true. The insurer, therefore, is bound by the judgment against the defendant as to the issues determined by such judgment to the amount of the coverage provided in said policy of $ 5,000. We must therefore determine what issues were determined by this judgment. The petition charged that the injuries, and damages "were caused wholly, directly, and proximately by and on account of the negligent acts of the defendant, its agents, servants and employees, and also the negligent acts of the defendant, its agents, servants and employees, and also the negligent acts of the said John F. Greer, and his agents, servants, and employees, and that the negligence of the defendant, its agents, servants and employees, commingled and co-operated with the negligence of * * * John F. Greet and his servants, and was the proximate cause of plaintiff's injuries and damages." The judgment recited:

"That the plaintiff is entitled to recover of and from the defendant on the cause of action set out in plaintiff's original petition."

¶8 It will be noted that the petition does not allege that the injury was caused by an employee of the assured, neither does it make a charge equivalent thereto, but it alleges that the negligent acts of the defendant and its agents, commingled with and cooperated with the negligence of the independent contractor, caused the injury. The petition stated facts which showed that the said John F. Greer was an independent contractor, and that the injury occurred during the progress of work let to him, and in the absence of any statement in the petition to the effect that the injuries of plaintiff were caused by an employee of the insured, it stated a cause of action coming within the terms of the policy. The record does not contain the evidence offered upon which the judgment against the defendant was based, but the judgment recites that evidence was offered. In the trial of the garnishment proceedings, the court permitted the garnishee to offer evidence upon the question as to whether the injury was caused by an employee of the insured, and the plaintiff, without objection from the garnishee, was permitted to offer evidence in rebuttal of such evidence of the garnishee, and such evidence as a whole supports the conclusion that the injury was not caused by an employee...