Swanson v. Georgia Casualty Company

• Citation: 287 S.W. 455,315 Mo. 1007
• Decision Date: 11 October 1926
• Docket Number: 25120
• Parties: W. O. Swanson and F. L. Swanson, Partners, Doing Business as Swanson Brothers, Appellants v. Georgia Casualty Company
• Court: United States State Supreme Court of Missouri

287 S.W. 455

315 Mo. 1007

W. O. Swanson and F. L. Swanson, Partners, Doing Business as Swanson Brothers, Appellants v. Georgia Casualty Company

No. 25120

Supreme Court of Missouri

October 11, 1926

Appeal from Jackson Circuit Court; Hon. Willard P. Hall Judge.

Reversed and remanded.

Grover Tipton & Graves and Mosman, Rogers & Buzard for appellants.

(1) The plaintiffs are entitled to a construction of the policy of insurance most favorable to them, and such a one, if possible, as not to defeat the claim to indemnity. Cunningham v. Union Cas. Co., 82 Mo.App. 614; Sonders v. Commonwealth Cas. Co., 246 S.W. 613; Stix v. Indemnity Co., 175 Mo.App. 171; Mathews v. Modern Woodmen, 236 Mo. 342; Still v. Ins Co., 185 Mo.App. 550; La Force v. Ins. Co., 43 Mo.App. 530; Stary v. Ins. Co., 176 Mo.App. 580; Rosenbach v. Fid. & Cas. Co., 204 Mo.App. 154; Wiest v. Ins. Co., 186 Mo.App. 29; Schmol v. Travelers Ins. Co., 189 S.W. 600; Joyce on Insurance (2 Ed.) pp. 574, 575, 581; Cooley on Insurance, 636; Howell v. Security Mut. Life Ins. Co., 253 S.W. 411. (2) The policy indemnifies plaintiffs against all claims on account of bodily injuries suffered by an employee whether for workmen's compensation or damages. Stern & Co. v. Liberty Ins. Co., 209 Pa. 559; Trinity County Lbr. Co. v. Ocean Acc. & G. Co., 228 S.W. 114. (3) King was an employee of the plaintiffs. (a) Plaintiffs were independent contractors engaged in work over which the railway company had no control, and King was sent to work for plaintiffs, who took full charge of him and the work which he was doing at the time of his injury, and consequently were his special masters under the circumstances. Winkleback v. Great Western Mfg. Co., 187 S.W. 95; Hasty v. Sears, 31 N. E. (Mass.) 759; Wyman v. Berry, 75 A. 123; Coughan v. City of Cambridge, 44 N. E. (Mass.) 218; Byrne v. Railroad Co., 61 F. 605; Powell v. Construction Co., 88 Tenn. 692, 13 S.W. 691; 1 Labatt's Master & Servant, sec. 52. (b) The Supreme Court of Kansas held the railway company liable to King on the theory that Swanson Brothers were the vice-principals of the railway company. If plaintiffs were the vice-principals of the railway company they were the masters of King and he was their employee within the terms of the policy. King v. Railway Co., 108 Kan. 372; Railroad v. Salmon, 14 Kan. 512; Hannibal Railroad Co. v. Fox, 31 Kan. 586; Dayharsh v. Railroad Co., 103 Mo. 570; Hoosier Stone Co. v. McCain, 133 Ind. 231. (c) The insurance company collected premium based upon the wages paid for King's services, after knowledge of the fact that he was injured and was making claim therefor, and at all times treated King as an employee of plaintiffs and is therefore now estopped from denying that King was plaintiffs' employee. 21 C. J. 1206, 1207, 1237, 1202; Greeley v. Provident Sav. Bk., 103 Mo. 212; Curtis v. Moore, 162 Mo. 442; Hartman v. Railroad Co., 192 Mo.App. 271, 182 S.W. 148; Penney & Penney v. Kramer, 182 S.W. 755; Woolfolk v. Home Ins. Co., 202 S.W. 627; Dyer v. Am. Ins. Co., 211 Mo.App. 476; Mining & Milling Co. v. Fire Ins. Co., 276 Mo. 524; Pauley v. Assurance Co., 261 S.W. 340; Harland v. Ins. Co., 192 Mo.App. 198; Humes Const. Co. v. Philadelphia Cas. Co., 32 R. I. 246. (4) The claim which King made against the Santa Fe, and which plaintiffs were required to pay, was covered by the terms of the policy for the reason that it was a claim which resulted from injuries to plaintiff's employee. Harnden v. Southern Surety Co., 200 Mo.App. 162; Fidelity & Cas. Co. v. Southern News Co., 101 S.W. 900, Creem v. Fidelity & Cas. Co., 126 N.Y.S. 555, affirmed 206 N.Y. 733; Lamkin v. U. S. F. & G. Co., 201 N.Y.S. 712; Black Mountain Railroad Co. v. Ocean A. & G. Corp., 172 N.C. 637, 175 N.C. 566; Kibler v. Maryland Cas. Co., 74 Wash. 159. (5) The Supreme Court of Kansas in the King case held that "the railway company and Swanson Brothers were all one employer under the circumstances," and the defendant having pleaded the decision, is bound by it. Henry v. Woods, 77 Mo. 277; Bennett v. Assur. Corp., 255 S.W. 1076. (6) The defendant assumed control of the defense of the King case and is therefore bound by the judgment. Strong v. Phoenix Ins. Co., 62 Mo. 295; State v. Stone, 269 Mo. 334; State v. Coste, 36 Mo. 437; Robins v. Chicago, 4 Wall. 657. (7) The Workmen's Compensation Law of Kansas is not a defense to this action, because: (a) King was not subject to the act. R. S. Kan. 1923, sec. 44-508; Harris v. Oklahoma Nat. Gas. Co., 91 Ok. 39; Ray v. Com. Acid Co., 227 S.W. 851. (b) The policy does not limit coverage to loss by reason of the Workmen's Compensation Act. (3) The defendant, having assumed charge of the claim having assured plaintiffs of protection under the policy and having admitted its liability for the claim, has waived the right to claim that the liability is not within the policy provisions and is estopped from denying liability for the loss suffered by plaintiffs. Royle Min. Co. v. Fidelity & C Co., 126 Mo.App. 104, 161 Mo.App. 185; Fairbanks Canning Co. v. London G. & A. Co., 154 Mo.App. 327; Reiger v. London G. & A. Co., 202 Mo.App. 184; Gold Issue Mill Co. v. Penn. Fire Ins. Co., 267 Mo. 564; Ark. State Life Ins. Co. v. Allen, 266 S.W. 449; Dye v. New York Life Ins. Co., 227 S.W. 1062; Tinsley v. Aetna Ins. Co., 205 S.W. 78; Empire State Surety Co. v. Pac. Nat. Lbr. Co., 200 F. 224; Employers Lia. Assur. Corp. v. Coal Co., 141 F. 962; Tozer v. Ocean A. & G. Co., 94 Minn. 478; Globe Nav. Co. v. Maryland Cas. Co., 39 Wash. 299.

Henry S. Conrad, L. E. Durham and Hale Houts for respondent.

(1) The policy should be considered as a whole, and when this is done it is unambiguous and the intention of the parties is clear. Strauss v. Imperial Fire Ins. Co., 94 Mo. 189; State ex rel. Ins. Co. v. Allen, 295 Mo. 317. (2) The policy did not cover any liability for King's accident which was not under the Kansas Compensation Act. R. S. Kan. 1923, chap. 44, art. 5; McRoberts v. Zinc Co., 93 Mo. 364; Shade v. Cement Co., 92 Kan. 146; King v. Railroad Co., 108 Kan. 372. (3) The liability for which plaintiff seeks recovery is not a liability on account of an injury to an employee, and is therefore not covered by the policy. King v. Railroad Co., 108 Kan. 372; Tel. Co. v. St. Louis, 268 Mo. 498; Grooms v. Morrison, 249 Mo. 550; George Loving & Co. v. Cattle Co., 176 Mo. 352; Mathieson v. Railroad, 219 Mo. 548; Lumber Co. v. Lumber Co., 253 S.W. 123; Hill v. Mining Co., 119 Mo. 30, McLane v. Mercantile Trust Co., 292 Mo. 122; Berry v. Ins. Co., 203 Mo.App. 468. (4) The policy does not cover the payment of indemnity to a third party. (5) No obligation on the part of the defendant to reimburse plaintiffs for the indemnity paid to the Santa Fe was created by estoppel and no such issue was made for the jury. (a) Estoppel was not pleaded in the petition and could not be made an issue by the reply. Tel. Co. v. St. Louis, 268 Mo. 498, Grooms v. Morrison, 249 Mo. 550; George Loving & Co. v. Cattle Co., 176 Mo. 352; Mathieson v. Railroad, 219 Mo. 548; Lumber Co. v. Lumber Co., 253 S.W. 123; Hill v. Mining Co., 119 Mo. 30. (b) Plaintiffs could not rely upon estoppel to create an obligation and authorize recovery in this case. McLane v. Mercantile Trust Co., 292 Mo. 122; Berry v. Ins. Co., 203 Mo.App. 468. (c) There was no evidence sufficient to make an estoppel an issue. Hammerslough v. Cheatum, 84 Mo. 19; State ex rel. v. Meunch, 217 Mo. 141; Davis v. Hall, 90 Mo. 665; Lamport v. Ins. Co., 219 S.W. 1023; Jacks v. Link, 191 Mo. 295.

Lindsay, C. Seddon, C., concurs.

OPINION

LINDSAY

At the close of all the evidence in the trial of this cause, the court gave the instruction offered by defendant that under the pleadings and the evidence plaintiffs could not recover; whereupon plaintiffs took an involuntary nonsuit, and the case is here upon their appeal from the order overruling the motion to set aside the nonsuit.

The plaintiffs were building contractors, and their petition was founded upon two policies issued on May 5, 1916, by the defendant company. The policy declared upon in the first count was designated as a Workmen's Compensation Policy, made to indemnify the plaintiffs against loss or damage from claims for bodily injuries sustained by plaintiff's employees. The second, is designated as a Public Liability Policy, and provided for indemnity to plaintiffs against loss or damage from claims on account of bodily injuries suffered by persons not employed by plaintiffs, by reason of the operations in which plaintiffs were engaged. The second count of the petition was dismissed by plaintiffs, and the issues made here on appeal are those arising upon the terms of the first mentioned policy, and upon the other circumstances attending the transaction. Defendant introduced in evidence the second count of the petition and the policy therein sued upon.

At the time of the occurrence giving rise to the action, the plaintiffs, as independent contractors, were engaged in the erection of a building at Arkansas City, Kansas, for the Atchison, Topeka & Santa Fe Railroad Company. The contract between them and the railway company provided that plaintiffs should indemnify the railway company against any loss or damage suffered by it upon claims for personal injuries sustained by anyone by reason of the operations of plaintiffs in the construction of the building, and plaintiffs gave a surety bond to that effect. This contract was entered into after the execution of the policy sued upon. In the course of construction, the plaintiffs required the services of a locomotive engine, a crane, and a crew of men to operate the engine and crane for the purpose of moving and adjusting certain heavy trusses. An engine, with the engineer and four helpers,...