Hoven v. Employers' Liab. Assur. Corp.

• Decision Date: 01 May 1896
• Parties: HOVEN v. EMPLOYERS' LIABILITY ASSUR. CORP.
• Court: Wisconsin Supreme Court

93 Wis. 201

67 N.W. 46

HOVEN

v.EMPLOYERS' LIABILITY ASSUR. CORP.

Supreme Court of Wisconsin.

May 1, 1896.

Appeal from superior court, Douglas county; Charles Smith, Judge.

Garnishment proceedings by Ole O. Hoven against the Employers' Liability Assurance Corporation, garnishee. From a judgment for plaintiff, garnishee appeals. Affirmed.

On the 3d day of March, 1892, the appellant issued to the West Superior Iron & Steel Company its policy of insurance, the essential parts of which are as follows: “Whereas, the West Superior Iron and Steel Company of West Superior, Wisconsin, hereinafter called the ‘employer,’ by application dated the 1st of March, 1892, the statements in which the employer warrants to be true and agrees shall be incorporated herein, has applied to the Employers' Liability Assurance Corporation * * * for indemnity against claims for compensation for personal injuries caused to employés while in its service, at the place and places mentioned in the schedule hereto attached, and has paid to the corporation the sum of one thousand forty-four dollars as premium for such indemnity for twelve months from the 1st day of March, 1892, at noon, which premium is based on the estimated yearly pay roll of the employer, amounting to four hundred thousand dollars: Now, it is agreed as follows. That the corporation, in so far as regards injuries caused during the period covered by the premium now paid, or by any renewal, will pay to the employer * * * such sums for which the employer shall become liable to its employés by virtue of the common law or of any statute, subject to the following limitations: * * * In the event of an accident which shall be the cause of the death of or injury to an employé the corporation shall not be liable for more than $1,500. The sums paid to the employer shall be for personal injury within the meaning of this policy caused to any employé in its service while engaged in the employer's work in any of the occupations or at any of the places mentioned in the schedule hereto, such payment to be made within one week after the receipt by the corporation of satisfactory proofs of the claim: provided, always, that this policy is subject to conditions endorsed hereon.” The conditions indorsed provided, among other things, that in case of an accident causing personal injury to an employé, and an anticipated claim for damages, the assured should give immediate notice thereof to the company, and furnish such additional information as it might require, and that it should have the right to settle such claim or defend the same in the name of the employer. The schedule referred to is as follows: Under the heading “Description of the Occupation of Employés” occurs the following: “All operations connected with the business of iron and steel works.” Under the heading “Wages Paid to Employés in the Occupation” occurs the following: “Four hundred thousand dollars.” Under the heading “Places at Which Employés to Whom Wages are Paid are Employed” occurs the following: “West Superior and elsewhere in Wisconsin in the service of the employer.” The plaintiff, during the life of the policy, was one of the regular employés of the assured at said iron and steel works, and, during such time, and on the 24th day of August, 1892, he received a personal injury. Notice, according to the terms of the policy, was given to the appellant. Plaintiff commenced suit against the employer to recover compensation for his injuries. Notice thereof was given to the appellant. It refused to take any action in the matter, upon the ground that, “the operations being carried on at the time complained of, and by which plaintiff was injured, were not covered by the contract of insurance,” namely, the erection of a building. Such proceedings were had in the action that plaintiff recovered judgment against the employer for $1,400 damages and $51.95 costs. Thereafter such proceedings were had that appellant was summoned as garnishee of the judgment debtor by reason of its liability on the policy. Issue was joined in the garnishee action, and was tried, with the result that findings of fact were filed in accordance with the foregoing statement, and to the effect that at the time plaintiff was injured he was engaged in the manufacturing department; that the employer was building an addition to its works; that a crew other than the one plaintiff was connected with in the service of the employer was constructing the building; that while such crew was raising one of the girders it fell, striking against the shears at which plaintiff was at work, and, rebounding, struck and injured him; that the conditions of the policy to be performed by the employer subsequent to the accident in order to fix the liability of the assurer were complied with. The court construed the policy as a contract to indemnify against liability, and upon such construction, and the foregoing facts, and others not necessary to mention, found the appellant liable as garnishee, and ordered judgment accordingly. Appropriate exceptions were made to present the questions here considered. Judgment was entered in accordance with the findings, from which this appeal was taken.E. F. McCausland and Kitchel, Cohen & Shaw, for appellant.

John Brennan and Victor Linley, for respondent.

MARSHALL, J. (after stating the facts).

Did the court err in construing the policy of insurance to be a contract of indemnity against liability, instead of one of indemnity against damages, and in holding that payment of the personal injury claim is not a condition precedent to the right to recover thereon? The policy recites that it is issued on an application for indemnity against claims for compensation for personal injuries. It...