Ocean Acc. & Guarantee Corp. v. Piedmont Ry. & Elec. Co.

• Decision Date: 31 March 1920
• Docket Number: 333.
• Parties: OCEAN ACCIDENT & GUARANTEE CORPORATION, LIMITED, v. PIEDMONT RY. & ELECTRIC CO.
• Court: North Carolina Supreme Court

102 S.E. 636

179 N.C. 402

OCEAN ACCIDENT & GUARANTEE CORPORATION, LIMITED, v. PIEDMONT RY. & ELECTRIC CO.

No. 333.

Supreme Court of North Carolina

March 31, 1920

Appeal from Superior Court, Alamance County; Calvert, Judge.

Action by the Ocean Accident & Guarantee Corporation, Limited against the Piedmont Railway & Electric Company. From a judgment for defendant, plaintiff appeals. New trial granted.

A liability insurance policy issued to a railway and electric light company held to cover everything except the operation of a street railway and the railway power lines, and hence to entitle the insurer to have the pay roll of insured's power plant included in computing the premium, which was based on the pay roll.

Plaintiff on or about June 29, 1915, issued and delivered to the defendant, Piedmont Railway & Electric Company, a public liability insurance policy, set out in the record. The premium to be paid for this liability insurance was $9 per each $100 of compensation of said defendant to its employés working at and in the places covered by said insurance, as per its three monthly pay rolls. Plaintiff sues for a balance alleged to be due on the premium, and alleges that these three monthly pay rolls amounted to $5,042.45, exclusive of the pay roll of the employés of said street railway company which was specifically excluded because injuries to persons occurring by reason of the operation of the street railway were not covered by the policy.

Defendant does not in terms deny the plaintiff's allegation as to the amount of the pay roll, but does deny that the pay roll of defendant's power plant and light plant, which is run in connection with the power plant, should be included in the pay roll on which the premium is based. It was agreed that if the pay roll of the power plant is included, defendant would owe plaintiff $222.90, and that if said part of defendant's pay roll is not included defendant would owe plaintiff nothing. The parts of the policy itself material to the controversy are as follows:

"The premium is based upon the entire compensation earned, during the policy period, by all employés of the assured not herein elsewhere specifically excluded, engaged in connection with the work described in and covered by this policy."

"4. A full description of the work covered by this policy, the locations of all places where such work is to be done, the estimated compensation of employés engaged therein for the term of this policy, the premium rate or rates, and the deposit premium are given hereunder:

Description of work covered by this policy: Electric light and power companies, operation, maintenance and extension of lines, and making service connections.

Locations of all places where such work is to be done: Alamance and Orange counties, North Carolina.

Estimated compensation for policy period: See three monthly premium adjustment indorsement.

Premium rate per $100 of commission: $9.00.

Deposit premium: _________.

It is understood and agreed this policy shall not apply to bodily injuries or death caused directly or indirectly by reason of the operation or maintenance of the street railway, or its power lines or any other work in connection with the street railway or railway power lines. [ Then follows statement of special work done at all locations mentioned in policy, which are not covered by it, unless a specific amount of compensation, premium rate, and deposit are stipulated for.]

8. No work of any nature not herein disclosed is done by the assured at the places covered hereby, except as follows: Operation of street railway not covered hereunder."

The plaintiff contended that it was entitled to a premium which should be arrived at by taking a percentage of the entire pay roll of the defendant. The defendant contended that the premium was to be a percentage of only a part of its pay roll, and was not to include the pay roll of its employés engaged where the public was forbidden to go, and where there would be no danger of injury to the public, to wit, the pay roll of its employés actually engaged in and about its power house. If the contention of the plaintiff is correct, then the defendant would be due the balance sued for. If the contention of the defendant is correct, then it has paid plaintiff all sums due.

The trial judge, upon the admitted facts and other evidence which was not disputed, found for the defendant, and found that the defendant had paid all premiums it had contracted to pay, and there was a verdict and judgment for the defendant. Plaintiff excepted and appealed.

W. S. Coulter and A. H. King, both of Burlington, for appellant.

John J. Henderson and Parker & Long, all of Graham, for appellee.

WALKER, J. (after stating the facts as above).

We are required, in construing this policy, to examine the entire writing, and to base our conclusion as to its meaning upon the contract as a whole. The language of the instrument is very comprehensive and when properly construed, it embraces all kinds of work and operation and all risks arising therefrom, except those in connection with the defendant's street railway, or its power lines. If the exception was intended to cover other operations or other risks, why was it not expressed in the writing. The language of the exception is very clear and explicit, for it provides that--

"No work...