Serafino v. United States Fid. & Guar. Co.

• Decision Date: 15 March 1939
• Docket Number: No. 30.,30.
• Citation: 4 A.2d 850,122 N.J.L. 294
• Parties: SERAFINO et al. v. UNITED STATES FIDELITY & GUARANTY CO.
• Court: New Jersey Supreme Court

4 A.2d 850

122 N.J.L. 294

SERAFINO et al.

v. UNITED STATES FIDELITY & GUARANTY CO.

No. 30.

Supreme Court of New Jersey.

March 15, 1939.

Appeal from Court of Common Pleas, Morris County.

Action by Dominic Serafino and Paul Di Vitantonio against the United States Fidelity & Guaranty Company, a body corporate, to enforce payment of compensation award made to plaintiffs. From a judgment for plaintiffs, the defendant appeals.

Judgment affirmed.

Argued October term, 1938, before BROGAN, C. J., and BODINE and HEHER, JJ.

King & Vogt, of Morristown (Harold A. Price, of Morristown, and William P. Braun, of Newark, of counsel), for appellant.

Edwards, Smith & Dawson, of Jersey City (Edwin F. Smith, Raymond Dawson, and George Echelman, all of Jersey City, of counsel), for respondents.

HEHER, Justice.

Plaintiffs suffered injuries—Di Vitantonio on May 5, 1933, and Serafino on May 14, 1933—by accident arising out of and in the course of their respective employments with one Salvatore Bonanni; and, in separate proceedings instituted in the compensation bureau, they were awarded compensation under the elective system created by Chapter 95 of the Laws of 1911, Pamph.L., pp. 134, 763, as amended, R.S.1937, 34:15-7 et seq.

There was in force, when these accidents occurred, a policy of workmen's compensation insurance issued by the defendant corporation to Bonanni and one Daniel Padovano on May 4, 1933; and the plaintiffs joined in this action against the insurer to enforce payment of the awards so made.

The gravamen of the complaint was that the awards were within the policy coverage, and that, in any event, defendant, by undertaking the defense of the proceedings in the bureau, was estopped from asserting noncoverage. As regards the employments, there was the bare allegation that each plaintiff sustained his injuries "in an accident arising out of and in the course of his employment; said employment being pursuant to an agreement made by" him "with Salvatore Bonanni."

The judgments of the compensation bureau were put in evidence; and they embody all the proofs respecting the nature of the employments and the character of the service at which plaintiffs were engaged when they sustained their injuries. Di Vitantonio was "hired by * * * Bonanni on May 4, 1933, for grading work at Mountain Lakes, New Jersey;" and there was a finding that he was injured by an accident arising out of and in the course of that employment, Serafino "alleged that he was employed by * * * Bonanni, on or before May 14, 1933, in performing certain mason work * * * in the Borough of Mountain Lakes," and suffered an eye injury "while chipping stone with a Steel hammer," and it was found that he was "in the employ of * * * Bonanni at the time of the occurrence of his injury," and that the injury "arose in the course of his employment * * * by Bonanni."

The trial judge directed a verdict in favor of plaintiffs for their respective awards, on the ground that the accidents were covered by the contract of insurance; and the insurer appeals from the consequent judgment.

In our view, the learned trial judge misinterpreted the contract. We do not read it as covering individual operations of the named assureds, separate and distinct from their co-partnership undertakings of the character covered by the policy. The insurer thereby agreed 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 resuiting therefrom," to pay (a) the compensation provided by section II of the Workmen's Compensation Act, supra, and (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 * * *." Thus it is that, for the employer's insured character and status, reference must be had to the declarations. The employer is insured only as "named and described" in the declarations.

Item 1 of the declarations follows:

"Name of this Employer Salvatore Bonanni and Daniel Padovano

"P. O. Address 719 Wooton Street, Boonton, New Jersey.

"For the purpose of serving notice, as in the Policy provided, this Employer agrees that this address may be considered as both residence and business address of this Employer or any representative upon whom notice may be served.

"Individual, co-partnership, corporation or estate? Co-Partnership."

Item 3 thereof classifies the "business operations" of "this Employer" as "masonry, concrete, or stucco work incident to the construction of private residences" of a given character and description, and lists the above address as the premises "at or from" which the operations were to be conducted.

Item 4 also evinces a purpose to limit the policy coverage to "all persons employed in the service of this Employer in connection with the business operations above described * * * ;" and Item 5 declares that "This Employer is conducting no other business operations at this or any other location not herein disclosed."

These provisions, taken and compared together in the light of the general object of the contracting parties, unmistakably reveal a common purpose to confine the policy coverage to the co-partnership operations of the insured. Plainly, the term "co-partnership", as used in Item 1 of the declarations, was designed to exclude operations of the individual assureds unassociated therewith; there is no other discernable purpose. This is certainly the meaning that would be attributed to the language by a reasonably intelligent person conversant with all operative usages and knowing the circumstances attending the transaction. Corn Exchange National Bank & Trust Co. v. Taubcl, 113 N.J.L. 605, 175 A. 55.

As so used, the word "co-partnership" cannot fairly be considered as descriptive merely of the status of the assureds as respects each other, with no sense of coverage limitation to the prosecution of the joint enterprise. If that were so, the word—viewed in the light of the common object—would be meaningless; and it is a secondary canon of construction that the judicial authority will, if possible, give effect to all parts of the instrument, and an interpretation which gives a reasonable meaning to all its provisions will be preferred to one which leaves a portion of the writing useless or inexplicable. Williston on Contracts, Rev.Ed, sec. 619; A.L.J.Contracts, sec. 236(a).

The stipulation for the payment of "the premium" on "operations as above defined * * * undertaken by this Employer," but "not described or rated" in the declarations, manifestly has reference to co-partnership undertakings, as distinguished from those of the individual assureds unconnected therewith.

Plaintiffs are not aided, as regards the scope of the policy, by the provisions of section 14 of Chapter 178 of the Laws of 1917, Pamph.L, pp. 522, 526, whose obligations the insurer expressly embraced by...