New Masonic Temple Association v. Globe Indemnity Company
| Decision Date | 06 May 1938 |
| Docket Number | 30185 |
| Citation | 279 N.W. 475,134 Neb. 731 |
| Parties | NEW MASONIC TEMPLE ASSOCIATION, APPELLEE, v. GLOBE INDEMNITY COMPANY, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lancaster county: ELLWOOD B CHAPPELL, JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
1. " When an instrument consists partly of written and partly of printed form, the former controls the latter, where the two are inconsistent." Comp.St.1929, § 20-1216.
2. Typewriting is " writing," within the contemplation of such statute. American Surety Co. v. School District, 117 Neb. 6, 219 N.W. 583; Flower v. Coe, 111 Neb. 296, 196 N.W. 139; Petersen v. City of Omaha, 120 Neb. 219, 231 N.W. 763.
3. Baumgart v. Sovereign Camp, W. O. W., 127 Neb. 865, 257 N.W. 269.
4. " If any uncertainties or ambiguities appear in an insurance policy which may be solved by either one of two reasonable constructions, the one that is more favorable to the insured and which will give life, force and effect to the policy should be adopted." Morse v. General American Life Ins. Co., 130 Neb. 37, 263 N.W. 676.
5. Omaha Bridge & Terminal R. Co. v. Hargadine, 5 Neb., Unof., 418, 98 N.W. 1071; Hargadine v. Omaha Bridge & Terminal R. Co., 76 Neb. 729, 107 N.W. 864; Boyd v. Humphreys, 117 Neb 799, 223 N.W. 658; Matthews v. Crancer Co., 117 Neb. 805, 223 N.W. 661; Sloan v. Harrington, 117 Neb. 809, 223 N.W. 663, distinguished.
6. " Owner of building, used in conducting owner's busi ness, who enters into contract with contractor for certain repairs to said building, is an ‘ employer' within the terms of section 48-116, Comp.St.1929, unless it be shown that the contractor was required to procure compensation insurance for protection of his employees." Jones v. Rossbach Coal Co., 130 Neb. 302, 264 N.W. 877.
7. Policy in suit construed, and held an indemnity contract providing coverage for the liabilities here in controversy.
Appeal from District Court, Lancaster County; Chappell, Judge.
Action by the New Masonic Temple Association against the Globe Indemnity Company to recover on a policy of insurance issued to the plaintiff by the defendant for indemnification of the plaintiff against loss by reason of accidental bodily injuries to persons injured on the premises. From a judgment in favor of the plaintiff, the defendant appeals.
Judgment affirmed.
Hall, Cline & Williams, for appellant.
Beghtol, Foe & Rankin, contra.
This is an action at law to recover upon a policy of insurance issued to plaintiff, New Masonic Temple Association, by defendant, Globe Indemnity Company. The parties will be referred to herein as in the court below. In that court, a jury was waived by the parties, the issues made up by the pleadings, and evidence introduced, at the conclusion of which findings of fact and of law were made, and judgment entered in favor of plaintiff and against defendant. From the order of the trial court overruling its motion for a new trial, defendant appeals.
The record presents questions of law, none of fact. The issuance of the policy in suit in the form established by the evidence is admitted by the pleadings. The payment of the premium is not denied. That the policy was in full force and effect at the time the transaction occurred which furnishes the basis of this litigation, the pleadings and evidence sustain. It thus appears that on or about September 18, 1934, one John Brotzman was in the employ of one Christopher A. Nootz, as a plasterer and cement worker. Nootz had entered into a contract with plaintiff to make certain repairs on a building owned by it, a corporation having power to maintain and own the said building. While Brotzman was thus employed by Nootz, and in the course of the regular business of making repairs on this building so owned, he sustained personal injuries in an accident arising out of and in the course of his employment, occasioned by falling from the roof of the building on which he was working. At the time of said accident, Christopher A. Nootz, his immediate employer, had failed to obtain and have in force any workmen's compensation insurance to protect defendant, and the New Masonic Temple Association likewise had failed to require the said Nootz to procure and have in force workmen's compensation insurance, as provided by the Nebraska workmen's compensation act, and to otherwise avoid liability under that act. As a result of this transaction, and in a proper proceeding had for that purpose, a judgment was made and entered in favor of Brotzman, based on the injuries thus sustained by him, and against the New Masonic Temple Association in the sum of $ 2,664.34 and costs. The demands upon defendant for reimbursement were then refused by it. Thereupon action was instituted by plaintiff, resulting as hereinbefore set forth.
The sole challenge presented by defendant in this court is that the coverage provided for in the policy in suit does not extend to nor cover any liability for this accident suffered by Brotzman.
It may be fairly inferred that, in the negotiations which preceded the issuance of the policy in suit, it was discovered that the printed forms of the defendant company did not conform to the situation of the insured, nor cover the risks for which insurance was then sought, and that a change thereof was necessary. Accordingly, the following paragraphs were typewritten on the face of the policy, viz.:
"It is agreed by the Insuring Company that the words 'not employed by the Assured' appearing in the fourth line of the first paragraph of 'Insuring Agreements' Number One (1) shall be stricken out and become of no force or effect."
Also, "The 'Insuring Agreements,' as set out in a contract of insurance under General Liability Policy # GL-856117, as included within paragraphs numbered from one (1) to four (4) issued by the Globe Indemnity Company, are hereby declared to include within their definition and the liability assumed that the Company agrees to indemnify the assured against loss by reason of accidental bodily injuries to persons who may be so injured while upon the premises of the assured or the ways adjacent thereto, without regard to the relation of the person so injured may bear to the Assured, in so far as it relates to the employment, directly or indirectly, of the person so injured."
The "Insuring Agreements" as originally set forth in the blank form of policy employed by defendant, were as follows:
"To pay to the persons entitled thereto any sums imposed by law upon the Insured as damages on account of bodily injuries, including death at any time resulting therefrom, accidentally suffered or alleged to have been so suffered from any cause whatsoever during the policy period defined in Statement No. 6, by any person or persons not employed by the Insured, or by any employee of the Insured if such injuries do not arise directly or indirectly out of and in the course of his employment by the Insured or in connection therewith, while within or upon the premises designated in Statement No. 4 as the premises to which this policy applies or upon the sidewalks, areas, or other ways immediately adjacent to the said designated premises, or away from the said designated premises if caused by an employee in the course of his employment by the Insured in connection with the business of the Insured conducted on the said designated premises." (Italics supplied.)
In connection with these "Insuring Agreements" defendant insists that plaintiff's contentions are foreclosed by the following printed provisions as contained in the original printed form of policy, viz.:
"The Agreements of this policy are subject to the following conditions: * * * This policy shall not apply in respect of any liability voluntarily assumed by the Insured under any agreement, oral or written, or any liability, imposed upon or voluntarily accepted by the Insured, by reason of obligations, requirements, impositions, or penalties under any workmen's compensation plan or law."
In determining whether indemnity against John Brotzman's claim on account of injuries suffered is within the coverage of the policy of insurance in suit, the instrument must be construed as an entirety, and read in the light of certain canons of construction, of which we refer to the following:
"When an instrument consists partly of written and partly of printed form, the former controls the latter, where the two are inconsistent." Comp. St. 1929, sec. 20-1216. And typewriting is "writing," within the contemplation of such statute. American Surety Co. v. School District, 117 Neb. 6, 219 N.W. 583; Flower v. Coe, 111 Neb. 296, 196 N.W. 139; Petersen v. City of Omaha, 120 Neb. 219, 231 N.W. 763.
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