Scott v. Devine

• Decision Date: 08 February 1930
• Docket Number: 29,128
• Parties: BOBBY SCOTT et al., by Their Guardian, FRANK SCOTT, Appellants, v. JACK DEVINE, a Sole Trader, doing business as DEVINE COAL COMPANY, and SUBSCRIBERS AT CONSOLIDATED UNDERWRITERS, a Reciprocal Insurance Company, Appellees
• Court: Kansas Supreme Court

284 P. 594

129 Kan. 808

BOBBY SCOTT et al., by Their Guardian, FRANK SCOTT, Appellants, v. JACK DEVINE, a Sole Trader, doing business as DEVINE COAL COMPANY, and SUBSCRIBERS AT CONSOLIDATED UNDERWRITERS, a Reciprocal Insurance Company, Appellees

No. 29,128

Supreme Court of Kansas

February 8, 1930

Decided January, 1930.

Appeal from Crawford district court, division No. 1; LELAND M RESLER, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

RECIPROCAL INSURANCE--Construction of Contract--Right of Indemnified Employee. A contract for reciprocal insurance is examined and held to contain a contract between the underwriters on the one hand and the employees of the subscribers on the other, obligating the underwriters to pay compensation to the employees, or his dependents, measured by the workmen's compensation law.

Phil H. Callery, James E. Callery and Caroline A. Lowe, all of Pittsburg, for the appellants.

C. O. Pingry, P. E. Nulton and G. L. Stevenson, all of Pittsburg, for the appellees.

OPINION

HARVEY, J.:

This is an action on a policy or contract of reciprocal insurance. The trial court sustained a demurrer to plaintiffs' amended petition, and they have appealed.

The original petition was in one count, but in compliance with an order of the court made on defendants' motion to separately state and number, the amended petition set forth the cause or causes of action in two counts. The petition alleges, in substance, that plaintiffs are the minor children and dependents of Peter Scott, deceased, who on February 16, 1927, while working as a coal miner for the defendant, Jack Devine, who was operating a coal mine, sustained fatal injuries under such circumstances that plaintiffs are entitled to compensation as his dependents under the workmen's compensation act as it existed prior to the amendment of that act by chapter 232 of the Laws of 1927; that the defendant, Subscribers at Consolidated Underwriters, with main office at Kansas City, Mo., a reciprocal insurance company composed of various individuals, partnerships or corporations, designated as Subscribers at Consolidated Underwriters, which subscribers were duly authorized under the laws of this state to exchange reciprocal or interinsurance contracts with each other covering losses such as here claimed, and that Jack Devine was a member of and one of the Subscribers at Consolidated Underwriters, and that his employees, including Peter Scott, were covered by the contract of insurance existing between such subscribers, a copy of which contract was attached to the petition. This contract in part reads:

"Subscribers at Consolidated Underwriters, hereinafter called underwriters, do hereby severally agree with the subscriber named in the schedule of warranties hereof, that whenever, within the contract period, bodily injuries (including death resulting therefrom) shall be accidentally inflicted upon any person or persons legally employed by the subscriber, as follows:

"Compensation coverage. 1. (a) To assume all of the obligations imposed upon this subscriber under the compensation law specified in the compensation indorsement attached hereto, in so far as such obligations apply to compensation or other benefits, on account of bodily injuries (including death resulting therefrom) accidentally inflicted upon such employees who are covered under this contract.

"Employer's liability coverage. 1. (b) To indemnify such subscriber by reason of the liability imposed by law upon him for damages on account of bodily injuries (including death resulting therefrom) accidentally inflicted upon such employees who are covered under this contract, but not in excess of the limits expressed in condition 22 of this contract.

"The foregoing agreements are subject to the following conditions:"

[Concerning which conditions there is no controversy here, and they need not be set out further than to say that Jack Devine was the subscriber named in the schedule of warranties, and that the compensation indorsement attached was the compensation law of the state of Kansas.]

The question presented here is whether this is a contract purely of indemnity, or whether it is a contract of insurance for the employee on which plaintiffs can maintain an action. If it is the former of these the demurrer properly was sustained, for this is not an action by Devine to recover something he has paid. The amended petition does not allege that Devine has paid anything, and we are told in the briefs that after the...