Hall v. Crystal Lake Ice Co., 357.

• Decision Date: 03 May 1938
• Docket Number: No. 357.,357.
• Citation: 199 A. 252
• Court: Vermont Supreme Court
• Parties: HALL v. CRYSTAL LAKE ICE CO. et al.

199 A. 252

HALL

v. CRYSTAL LAKE ICE CO. et al.

No. 357.

Supreme Court of Vermont. Chittenden.

May 3, 1938.

Appeal from Commissioner of Industries.

Proceeding under the Workmen's Compensation Act by William B. Hall, claimant, against the Crystal Lake Ice Company, employer, and the American Fidelity Company, insurance carrier. From an award by the Commissioner of Industries, ordering payment of compensation by the employer, but discharging the insurance carrier, the claimant appeals.

Order discharging insurance carrier vacated, and judgment rendered against it.

Lee E. Emerson, of Barton, for appellant. Clarence R. White, of Burlington, for appellee American Fidelity Co.

Argued before POWERS, C. T" and SLACK, MOULTON, SHERBURNE, and BUTTLES, JJ.

MOULTON, Justice.

This is an appeal by the claimant from an award by the commissioner of industries, ordering the payment of compensation by the employer, but discharging the insurance carrier. No question is made concerning the nature of the injury, the extent of the disability, or the amount of compensation; the only point is whether the policy issued by the insurance carrier covered the operation during which the accident occurred.

There is no dispute as to the facts. The insured, Joseph E. Hendy, was engaged in the business of harvesting, storing, and retailing natural ice, at Barton, Vt, under the name of the Crystal Lake Ice Company. He was insured under a workmen's compensation and employer's liability policy, issued by the American Fidelity Company, by which the insurer agreed "to pay promptly any person entitled thereto, under the Workmen's Compensation Law, P.L. 6480 et seq., and in the manner therein provided, the entire amount of any sum due, and all installments thereof as they become due," and "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." Other material provisions of the policy are as follows:

"This Agreement Shall Apply to such injuries so sustained by reason of the business operation described in said Declarations which, for the purpose of this insurance, shall include all operations necessary, incident or appurtenant thereto, or connected therewith, whether such operations are conducted at the work places defined and described in said Declarations or elsewhere in connection with, or relation to, such work places. * * *

"The statements in items 1 to 6 inclusive, in the Declarations hereinafter contained, are true. This policy is issued upon such statements and in consideration of the provisions of the Policy respecting its premium and the payment of the premium in such Declaration expressed. Declarations * * * 3. Locations of all factories, shops, yards, buildings, premises or other work places of this Employer, by Town or City, with Street and Number. Barton, Vermont. * * * 5. This Employer is conducting no other business operations at this or any other location not herein disclosed, except as herein stated: No Exceptions."

The claimant, William B. Hall, was employed by the Crystal Lake Ice Company as a mechanic, in the repair and operation of the machinery used in connection with the filling of the icehouse. His employment began in December, 1936. It was and had been, since 1925 or 1926, the practice of the Crystal Lake Ice Company to "swap work" with the Gill. Brook Ice Company, of Colchester, Vt.—that is to say, the proprietor of the latter business would come to Barton for a week or two in the autumn or spring of each year and assist in the harvesting of ice at that place, and in return Anthony Hendy, the son of the insured, and manager of the Crystal Lake Ice Company, was accustomed to go to Colchester and render like service. The two companies, however, were entirely separate and distinct. About February 1, 1937, Anthony asked the claimant to go to Colchester with him, and the latter did so with the consent of the insured, his employer. While working at the Gill Brook Ice Company's plant he remained on the pay roll of the Crystal Lake Ice Company, took his orders solely from Anthony, regarded the latter as his superintendent, and himself as an employee of the Crystal Lake Ice Company. No authority over him was exercised by the Gill Brook Ice Company. He was engaged in operating the elevator chair machinery which lifted the cakes of ice and conveyed them to the icehouse, and, in doing so, suffered the injury for which he seeks compensation.

The commissioner of industries...