Home Mixture Guano Co. v. Ocean Accident & Guarantee Corp, Ltd., of London, England

• Decision Date: 18 February 1910
• Citation: 176 F. 600
• Parties: HOME MIXTURE GUANO CO. v. OCEAN ACCIDENT & GUARANTEE CORPORATION, LIMITED, OF LONDON, ENGLAND.
• Court: U.S. District Court — Northern District of Georgia

176 F. 600

HOME MIXTURE GUANO CO. v. OCEAN ACCIDENT & GUARANTEE CORPORATION, LIMITED, OF LONDON, ENGLAND.

United States Circuit Court, N.D. Georgia.

February 18, 1910

S. B Hatcher and T. T. Miller, for plaintiff.

Rosser & Brandon, for defendant.

NEWMAN District Judge.

The present hearing in this case is on a demurrer to the declaration. The suit is on a policy of insurance issued by the defendant company, to the plaintiff company, in which the former agrees to indemnify the latter during a period of 12 calendar months, from February 9, 1906, to February 9, 1907 against loss of common-law or statutory liability, for damage on account of bodily injuries, fatal or nonfatal accidentally suffered while this policy is in force, by any employe or employes of the guano company, while on duty at the place, and in the occupations, and within the factories shop, or yard of the guano company. The policy contains certain provisions as to payments for injuries to employes, and certain limitations on the same, and then provides that the liability in no case shall exceed $5,000. The policy further provides that, in case of suit brought against the assured to enforce a claim for damages covered by the policy, the assured shall immediately forward to the American head office of the indemnity company every summons or other process, as soon as the same shall have been served on him, and the corporation (the indemnity company) will, at its own costs, defend such suit in the name and on behalf of the assured, or settle the same. Then follows this allegation:

'Petitioner avers that in the early part of the year 1906 a fire burned and destroyed a portion of its manufacturing plant, being the acid chamber thereof, and, in order to manufacture fertilizers, it was necessary to rebuild said acid chambers. It says that it contracted with an independent contractor and builder for the construction of the wooden building, in which the acid chamber was to be built; and, when this building was constructed, petitioner, with its employes, whose compensation is regularly included in the estimated pay roll, began the work of unrolling lead for lining the acid chamber, being an fertilizers. The burning of lead being also let out by contract to an independent contractor, and the only part of said work undertaken by plaintiff was the unrolling of the lead, which was an ordinary repair and in terms of said policy. That among said employes, engaged in unrolling said lead to cover the acid chamber was J. L. Womack, whose name was on the pay roll of assured, engaged in the operation of manufacturing fertilizers, and within the terms of the policy.

'Petitioner avers that defendant was advised of the character of the work it was doing, as will appear by letter received by it from defendant, under date of July 21, 1906, and the petitioners reply thereto, under date of July 24, 1906, copies of such letters attached.

And that said defendant raised no objection thereto, at the time, nor did it intimate until September 6, 1906, that the work in which plaintiff's employes were engaged was not within the terms of said policy; and not until after said J. L. Womack and other employes had been injured by the fall of the scaffolding used in unrolling lead to cover the acid chamber. Copy of the letter of September 6, 1906, attached. Petitioner avers that on the 6th day of August, 1906, said J. L. Womack, an employe of petitioner, was engaged at work upon a scaffold, in unrolling lead, necessary for the lining of its acid chamber, when said scaffold broke, causing said Womack to fall to the floor, and he was accidentally injured thereby, from which he lost a leg, and the other leg was badly injured, and his back was injured, being permanently injured.'

It is then averred that, in compliance with the conditions of said policy, plaintiff gave immediate written notice of said accident to the defendant, and that on the 8th day of November, 1906, rendered a hospital bill and doctor's bill for services and attention to said J. L. Womack, caused by his injuries. It is then alleged that in July, 1907, Womack brought suit in the city court of Columbus for the injuries sustained by the falling scaffold, as stated, and that plaintiff mailed to the indemnity company a copy of the subpoenas served upon them, and that the indemnity company refused to settle the damage, and failed and refused to engage counsel to represent plaintiff in the action.

The suit was tried in January, 1910, and resulted in a verdict for $5,000, and $50 costs of court, which execution issued against the guano company, which they fully paid and settled on the 18th day of January, 1909.

Plaintiff then alleges that it is entitled to recover from the indemnity company $10,000, or other large sum, also $1,000 attorney's fees, for defending the suit brought by J. L. Womack, and also $100 for medical and surgical attention to Womack on account of his injuries.

There is in the policy of insurance, as shown by the declaration, the following provision:

'This policy does not cover loss from liability for injuries to, or caused wholly, or in part by: * * * (e) Any person connected with the making of additions to, or alterations in, any structure, building or plant, or in connection with the construction, demolition, or extraordinary repairs thereof; but ordinary repairs when made on the premises mentioned in said schedule by employes whose compensation is regularly included in the estimated pay roll, are permitted.'

Paragraph 13 of what is called 'the schedule' contains this provision:

'The employes whose compensation is included in the foregoing list, are not employed in the making of alterations in, or additions to, structures, buildings or plants, nor in connection with the construction, demolition, or extraordinary repairs thereof.'

There is a demurrer to the declaration on the ground that there is no cause of action set out in this declaration. The declaration also is specially demurred to upon several grounds.

The precise question for determination here is whether J. L Womack, the person injured at the time he was so injured, was engaged in work which is covered by the policy of indemnity which was issued to the plaintiff by the defendant company. The declaration says, as will be seen above: 'That in the early part of the year 1906 a fire burned and destroyed a portion of its manufacturing plant, being the acid chamber thereof, and, in order to manufacture fertilizers, it was necessary to...