Ocean Accident & G. Corp. v. Missouri Engineering & C. Co., 22417.

• Citation: 63 S.W.2d 196
• Decision Date: 12 September 1933
• Docket Number: No. 22417.,22417.
• Court: Court of Appeal of Missouri (US)
• Parties: OCEAN ACCIDENT & GUARANTEE CORPORATION, Limited, v. MISSOURI ENGINEERING & CONTRACTING CO.

63 S.W.2d 196

OCEAN ACCIDENT & GUARANTEE CORPORATION, Limited, v. MISSOURI ENGINEERING & CONTRACTING CO.

No. 22417.

St. Louis Court of Appeals. Missouri.

September 12, 1933.

Respondent's Motion to Modify Denied September 26, 1933.

Appeal from St. Louis Circuit Court; James F. Green, Judge.

"Not to be published in State Reports."

Action by the Ocean Accident & Guarantee Corporation, Limited, against the Missouri Engineering & Contracting Company, wherein defendant filed a counterclaim. Judgment in favor of plaintiff on its cause of action, and for defendant on its counterclaim. From an order granting plaintiff a new trial, defendant appeals.

Order affirmed, and cause remanded.

Albert Chandler, of St. Louis, for appellant.

John K. Lord, Jr., of St. Louis, for respondent.

SUTTON, Commissioner.

Plaintiff brought this action for unpaid premiums on two insurance policies. Defendant counterclaimed for unpaid liability under an earlier policy. The trial, with a jury, resulted in a verdict for plaintiff on its cause of action for $2,007.02 and in favor of defendant on its counterclaim for $2,279.85. Judgment was accordingly given for defendant for $272.83. From the order of the court granting plaintiff a new trial, defendant appeals.

An agreed statement of facts read in evidence, subject to objections as to competency, relevancy, and materiality, is as follows:

"Agreed Statement of Facts.

"1. Plaintiff and defendant are corporations doing business in the State of Missouri and the plaintiff is licensed to write insurance in Missouri; plaintiff issued to defendant Public Liability Insurance policy No. GC221-900 on October 10, 1928, which remained in effect for one year; a premium was earned by plaintiff under said policy, of which $490.07 remains unpaid by defendant; plaintiff issued to defendant a Workmen's Compensation and Employes' Liability Policy No. EV775309, on October 10, 1928, which remained in effect for one year; a premium was earned by plaintiff under said policy, of which $1516.95 remains unpaid by defendant; verdicts may go against defendant for such sums together with interest from the date of demand therefor.

"2. The plaintiff issued to the defendant another insurance policy October 14, 1927, No. EY747948, with an amendment thereof dated October 20, 1927, the terms of which policy and amendment are made a part of this agreed statement of facts, and the premiums thereon have been paid by the defendant.

"3. The last policy was in force August 10, 1928, when C. M. Daily, an employe of the defendant, named in a rider attached to said policy, was seriously injured while discharging his duties under said employment in Missouri, and the defendant promptly notified the insurer of said injuries and complied with all the conditions of said policy on its part.

"4. That on notice of said injuries the plaintiff paid a doctor's bill of $10.00 and an ambulance bill of $12.00 for services to said Daily, but denied that there was any liability on the part of the defendant for said injury.

"5. That thereafter defendant paid out for the necessary services of surgeons, physicians, nurses and for hospital charges in the treatment of said Daily within one year from said injury the sum of $2279.85, which was the reasonable value thereof, and demanded the same of plaintiff August 18, 1929, but the plaintiff has refused to pay the same or any part thereof, before judgment shall have been rendered against defendant therefor.

"6. That Daily's salary was $600 a month and though promptly notified the Workmen's Compensation Commission disclaimed jurisdiction in the case for all purposes.

"7. That in the division of work between Daily and Cutts, also mentioned in said policy, on behalf of the defendant and known to the plaintiff, Daily was the officer in the field entirely in charge of some contracting jobs with all employees subject to himself; and that Cutts was the officer in the field in charge of all operations on other jobs with all employees subject to himself; and that Cutts and Daily both acted as vice-principals of the defendant on such jobs, and did not go upon each other's jobs."

The pertinent provisions of the policy, on which defendant's counterclaim was based, as originally issued, on October 14, 1927, are as follows:

"Insurance Policy.

"No. E. Y. 747948

"The Ocean Accident and Guarantee Corporation, Limited

(Herein called the Company)

"Does hereby agree with this employer, named and described as such in the Declarations forming a part hereof, as respects personal injuries sustained by employees, including death at any time resulting therefrom, as follows:

"One (a). To pay promptly to any person entitled thereto under the Workmen's Compensation Law and in the manner therein provided, the entire amount of any sum due, and all installments thereof as they become due,

"(1) To such person because of the obligation for compensation for any such injury imposed upon or accepted by this Employer under such of certain statutes, as may be applicable thereto, cited and described in an endorsement attached to this Policy, each of which statutes is herein referred to as the Workmen's Compensation Law, and

"(2) For the benefit of such person the proper cost of whatever medical, surgical, nurse or hospital services, medical, or surgical apparatus or appliances and medicines, or, in the event of fatal injury, whatever funeral expenses are required by the provisions of such Workmen's Compensation Law. * * *

"One (b). To Indemnify this employer against loss by reason of the liability imposed upon him by law for damages on account of such injuries to such of said employees as are legally employed wherever such injuries may be sustained within the territorial limits of the United States of America or the Dominion of Canada. * * *

"Three. To defend, in the name and on behalf of this employer, any suits or other proceedings which may at any time be instituted against him on account of such injuries, including suits or other proceedings alleging such injuries and demanding damages or compensation therefor, although such suits, other proceedings, allegations or demands are wholly groundless, false or fraudulent.

"Four. To pay all costs taxed against this employer in any legal proceeding defended by the company, all interest accruing after entry of judgment and all expenses incurred by the company for investigation, negotiation or defense.

"Five. This agreement shall apply to such injuries sustained by any person or persons employed by this employer whose entire remuneration shall be included in the total actual remuneration for which provision is hereinafter made, upon which remuneration the premium for this policy is to be computed and adjusted, and, also to such injuries so sustained by the president, any vice-president, secretary or treasurer of this employer, if a corporation. The remuneration of any such designated officer shall not be subjected to a premium charge unless he is actually performing such duties as are ordinarily undertaken by a superintendent, foreman or workman.

"Six. This agreement shall apply to such injuries so sustained by reason of the business operations described in said Declarations which, for the purpose of this insurance, shall include all operations necessary, incident and appurtenant thereto, or connected therewith, whether such operations are conducted at the work places defined and described in said Declarations or elsewhere in connection with, or in relation to, such work places. * * *

"This agreement is subject to the following conditions:

"Seven. The premium is based upon the entire remuneration earned, during the policy period, by all employees of this employer engaged in the business operations described in said Declarations together with all operations necessary, incident or appurtenant thereto, or connected therewith whether conducted at such work places or elsewhere in connection therewith or in relation thereto; excepting, however, the remuneration of the president, any vice-president, secretary or treasurer of this employer, if a corporation, but including the remuneration of any one or more of such designated officers who are actually performing such duties as are...