Iott v. The Continental Casualty Company

• Decision Date: 08 February 1930
• Docket Number: 28,865
• Citation: 129 Kan. 650,284 P. 823
• Parties: HATTIE G. IOTT, as an Individual and as Guardian of DONALD IOTT and BARBARA JEAN IOTT, Minors, Appellee, v. THE CONTINENTAL CASUALTY COMPANY, Appellant
• Court: Kansas Supreme Court

284 P. 823

129 Kan. 650

HATTIE G. IOTT, as an Individual and as Guardian of DONALD IOTT and BARBARA JEAN IOTT, Minors, Appellee, v. THE CONTINENTAL CASUALTY COMPANY, Appellant

No. 28,865

Supreme Court of Kansas

February 8, 1930

Decided January, 1930.

Appeal from Shawnee district court, division No. 1; GEORGE A. KLINE judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. LIABILITY INSURANCE--Obligation to Party Benefited--Extent of Liability. A casualty company issuing a policy to an employer covering the risk of his employees, as allowed under the workmen's compensation law, may by the terms and provisions thereof create a direct obligation to the workmen and their dependents, and extend the liability of the casualty company beyond the obligation of the employer under the provisions of the workmen's compensation act.

2. SAME--Extent of Liability--Where Employer Relieved from Liability Under Workmen's Compensation Act. Such extension as mentioned in paragraph one may by the terms and provisions of the policy render the casualty company liable for accidental injury occurring at a place or location that is not on, in or about the employer's premises.

3. JUDGMENTS--Res Adjudicata--Judgment Favoring Employer as Release of Casualty Company. Where the policy of the casualty company contains provisions extending the obligation for accidental injuries to places elsewhere than the premises of the employer, and the employer has already been discharged from any liability because the injury did not occur on, in or about his premises, such judgment in favor of the employer is not res adjudicata in an action by the same plaintiffs against the casualty company on the policy issued to the employer under the compensation act.

Keene Saxon, of Topeka, for the appellant.

Thomas F. Doran, Clayton E. Kline, Harry W. Colmery and M. F. Cosgrove, all of Topeka, for the appellee.

OPINION

HUTCHISON, J.:

The appeal in this case is from the decision of the trial court overruling the demurrer of defendant to the petition.

The action was brought by the dependents of a deceased workman against the defendant casualty company on a written contract known as a workmen's compensation and employers' liability policy issued by the casualty company to Mosby-Mack Motor Company, for whom the deceased was working at the time of his accidental death. The policy with its conditions, declarations and classifications was attached to the petition as an exhibit.

The petition alleges a direct liability of the casualty company under its policy to the plaintiffs for the compensation allowed under the workmen's compensation law of Kansas before the recent amendment.

The defendant in support of its demurrer insists that the petition does not state facts sufficient to constitute a cause of action because the only direct obligation of the defendant company to the employee of Mosby-Mack Motor Company is governed by the workmen's compensation law and that liability has been determined by this court adversely to the plaintiffs in the case of Iott v. Mosby, 126 Kan. 294, 268 P. 109, because it is res adjudicata and because the declaration and provisions of the policy limit defendant's liability in effect to that of the employer under the workmen's compensation law and under that law only.

Appellant calls attention to a number of statements in the policy which tend to limit and restrict its liability to definitely fixed losses or claims and the specific provisions, scheme and plan of the compensation law; also the references to the definitely designated location and business site of the insured and the limitation on the kind of business conducted by the insured to which there shall be no exception. The statements tend strongly to sustain the appellant's contention and would probably be conclusive as to such intended limitation were it not for other provisions of the policy unquestionably intended to extend and enlarge the coverage and obligations of the policy. Before referring to those we wish to consider the effect of the decision in the former case of these plaintiffs against the employer, Mosby-Mack Motor Company, as mentioned above. It was an action by these dependents of the deceased to recover from the employer for the accidental death of plaintiff's husband and father under the workmen's compensation law.

The employer owned and operated a garage and repair shop at 121-123 North Kansas avenue, Topeka, Kan., and on the day of the accident the deceased was assigned by the foreman to look after the car of one Harris and endeavor to eliminate a rattle of which the owner complained. To locate the trouble the workman asked the owner to drive the car out on the street and the workman got out on the fender to locate the rattle and detect what was wrong. They had gone ten or eleven blocks from the garage when another car collided with this car and crushed the workman between the two cars, from which injury he died two days later. It was held in that case that the workman "who was injured while making a road test of a car was not injured on, in or about his employer's place of business," and therefore the employer was not liable under the workmen's compensation law of the state of Kansas.

Appellant insists the question of liability under the compensation act is res adjudicata. If the obligation of the casualty company is the same as that of the employer this reasoning would be good, but the obligation is not necessarily nor always the same, as was held in the case of Robertson v Labette County Comm'rs, 122 Kan. 486, 252 P. 196. Appellant concedes that the casualty company may be liable under its policy even where the employer is...