Tomnitz v. Employers' Liability Assur. Corp., Limited, of London, England

• Decision Date: 19 November 1938
• Docket Number: 34943
• Citation: 121 S.W.2d 745,343 Mo. 321
• Parties: Tillie Tomnitz, Administratrix of the Estate of Martin Tomnitz, v. The Employers' Liability Assurance Corporation, Limited, of London England, Appellant
• Court: Missouri Supreme Court

121 S.W.2d 745

343 Mo. 321

Tillie Tomnitz, Administratrix of the Estate of Martin Tomnitz, v. The Employers' Liability Assurance Corporation, Limited, of London England, Appellant

No. 34943

Supreme Court of Missouri

November 19, 1938

Appeal from Circuit Court of City of St. Louis; Hon. Eugene L Padberg, Judge.

Reversed and remanded.

James R. Sullivan, Sullivan, Reeder & Finley, Jones, Hocker Gladney & Grand and James C. Jones, Jr., for appellant.

(1) Silicosis contracted by an employee from the inhalation of silica dust over a long period of time is not an accidental bodily injury, but is an occupational disease. Rue v Eagle Picher Lead Co., 38 S.W.2d 487; Miller v. St. Joseph Transfer Co., 224 Mo.App. 1115; Meldrum v. Southard Feed & Mill Co., 74 S.W.2d 75; Pellerin v. Washington Veneer Co., 2 P.2d 658; Adams v. Murphy Co., 174 S.E. 794; Mauchline v. State Ins. Fund, 124 A. 168; Connelly v. Hunt Furniture Co., 147 N.E. 366; Moore v. Service Motor Truck Co., 142 N.E. 19; Lerner v. Rump Bros., 149 N.E. 335; Rosenthal v. Natl. Analine & Chemical Co., 215 N.Y.S. 621; Meade Fiber Corp. v. Starnes, 247 S.W. 989; Peru Plow Co. v. Industrial Comm., 142 N.E. 546; Iwanicki v. State Industrial Acc. Comm., 205 P. 990; Salinas v. New Amsterdam Cas. Co., 67 F.2d 829; Gunter v. Sharp & Dohme, 151 A. 134; Thompson v. Amoskeag Mfg. Co., 170 A. 769; McGuire v. Sherwin-Williams Co., 87 F.2d 112; Coca-Cola Bottling Co. v. Mowry, 31 F.2d 562; Jellico Coal Co. v. Adkins, 247 S.W. 972; Smith v. International High Speed Steel Co., 120 A. 188; Taggart v. Industrial Comm., 12 P.2d 356; Donnelly v. Minn. Mfg. Co., 201 N.W. 305; Jones v. Rinehart & Dennis Co., 168 S.E. 483; Clinchfield Carbocal Corp. v. Kiser, 124 S.E. 271. (a) Silicosis so contracted is not within the coverage of a policy which requires that the bodily injury shall be "accidentally sustained." Belleville Enameling & Stamping Co. v. United States Cas. Co., 266 Ill.App. 15; Taylor Dredging Co. v. Travelers Ins. Co., 90 F.2d 449; United States Radium Corp. v. Globe Indemnity Co., 178 A. 271, affirmed 182 A. 626; Jackson v. Employers' Liability Assur. Corp., 248 N.Y.S. 207, affirmed 234 A.D. 893, affirmed 259 N.Y. 559. (2) Even on the assumption that the silicosis contracted by Martin Tomnitz was an accidental bodily injury within the meaning of the policies in controversy, nevertheless there is no evidence that this silicosis was contracted or sustained during the term of the policies. De Filippo's Case, 188 N.E. 245; Rossi v. Jackson Co., 169 A. 617; United States Radium Corp. v. Globe Indemnity Co., 178 A. 275; Utica Mut. Ins. Co. v. Hamera, 292 N.Y.S. 811. (3) The fact that appellant had made an inspection of assured's plant during the term of the policy coverage did not estop it from asserting that the policies did not cover an occupational disease sustained by assured's employees. Shepard v. Met. Life, 99 S.W.2d 144; Rosenthal v. Ins. Co. of North America, 158 Wis. 550, 149 N.W. 155; Broncato v. Natl. Reserve Life Ins. Co., 35 F.2d 612.

Everett Hullverson, J. Edward Gragg and Robert L. Aronson for respondent.

(1) There is a marked difference between the general, commonlaw definition of "accident" and "accidentally" and the definition set forth in the Workmen's Compensation Act; and in this case only the former definition is applicable. Miller v. St. Joseph Transfer Co., 32 S.W.2d 449; Crawfordsville Shale Brick Co. v. Starbuck, 80 Ind.App. 649, 141 N.E. 7; Soukup v. Employers' Liability Assur. Corp., 341 Mo. 614; Globe Indemnity Co. v. Banner Grain Co., 90 F.2d 774; Costly v. City of Eveleth, 173 Minn. 564, 218 N.W. 126; Barrencotto v. Cocker Saw Co., 266 N.Y. 139, 194 N.E. 61. (a) The common-law definition of "accident" includes any unexpected, unusual and unforeseen happening, of an unfortunate character. Webster's New International Dictionary; Funk & Wagnall's Standard Dictionary; 1 Encyclopedia Britannica (11 Ed.) 114; Bouvier's Law Dictionary (Rawles Ed.); 1 C. J. S. 426-7; Lewis v. Ocean Acc. & Guar. Corp., 224 N.Y. 18, 120 N.E. 56; Updike Inv. Co. v. Employers' Liability Assur. Corp., 270 N.W. 107; Chapin v. Ocean Acc. & Guar. Corp., 96 Neb. 213, 147 N.W. 465; Baker v. C., B. & Q. Ry. Co., 327 Mo. 1001, 39 S.W.2d 535; Sloan v. Polar Wave Ice & Fuel Co., 323 Mo. 363, 19 S.W.2d 476; Hogan v. K. C. Pub. Serv. Co., 322 Mo. 1103, 19 S.W.2d 707; Zeis v. St. L. Brewing Assn., 205 Mo. 638, 104 S.W. 99. (2) This case comes within the coverage of appellant's policies, being one of bodily injuries, accidentally sustained. (a) Diseases, whether occupational or not, can be accidentally sustained. Connelly v. Hunt Furniture Co., 240 N.Y. 83, 147 N.E. 366; Columbia Paper Stock Co. v. Fid. & Cas. Co., 104 Mo.App. 157, 78 S.W. 320; Walker v. Bairds & Dallwellington, 153 Law Times (N. S.) 322; United Paper Board Co. v. Lewis, 117 N.E. 276; Heilman Brewing Co. v. Schultz, 152 N.W. 446; Aetna Life Ins. Co. v. Portland Gas & Coke Co., 229 F. 552; Rist v. Larkin & Sangster, 156 N.Y.S. 868; International Travelers v. Francis, 23 S.W.2d 282; McFarland v. Mass. Bonding & Ins. Co., 8 S.W.2d 369; Hood & Sons v. Maryland Cas. Co., 206 Mass. 223, 92 N.E. 329; Rue v. Eagle-Picher Lead Co., 38 S.W.2d 487; Lovell v. Williams Bros., 50 S.W.2d 713; Downey v. Kansas City Gas Co., 92 S.W.2d 580; McNeely v. Carolina Asbestos Co., 206 N.C. 568, 174 S.E. 509; Victory Sparkler & Specialty Co. v. Francks, 147 Md. 368, 128 A. 635, 44 A. L. R. 363. (b) When there is ambiguity in an insurance contract, it must be resolved against the insurer, and the policy must be construed most favorably to the insured. Soukup v. Employers' Liability Assur. Corp., supra; State ex rel. Ocean Accident & Guar. Corp. v. Hostetter, 341 Mo. 488; State ex rel. Security Mut. Life Ins. Co. v. Allen, 305 Mo. 607, 267 S.W. 379; Henderson v. Mass. Bonding Co., 337 Mo. 1, 84 S.W.2d 922; Matthews v. Modern Woodmen of Amer., 236 Mo. 326, 139 S.W. 151; Dezell v. Fid. & Guar. Co., 176 Mo. 253, 75 S.W. 1102. (3) Appellant is estopped in this case to deny coverage of diseases resulting from dust hazards. Fuller Bros. Toll Lbr. & Box Co. v. Fid. & Cas. Co., 94 Mo.App. 490, 68 S.W. 222; Peters v. Fleming, 329 Mo. 870, 46 S.W.2d 581; Hellrung v. Continental Ins. Co., 232 S.W. 240; Eisen v. Hancock Mut. Life Ins. Co., 91 S.W.2d 81; Thomas v. Hartford Fire Ins. Co., 20 Mo.App. 157; Hoffman v. Ins. Co., 38 S.W.2d 730; Rosenthal-Sloan Mlny. Co. v. Hanover Fire Ins. Co., 219 S.W. 669; Schusterman v. Ins. Co., 253 S.W. 91.

Bradley, C. Ferguson and Hyde, CC., concur.

OPINION

BRADLEY

This cause, a garnishment proceeding, has been reassigned. April 5, 1933, Martin Tomnitz obtained a judgment against Pioneer Silica Products Company in the sum of $ 15,000 for personal injury, caused by the disease of silicosis. Tomnitz died June 10, 1933, and the cause was revived in the name of his administratrix, Tillie Tomnitz, his widow. Execution against the judgment defendant was returned nulla bona, and on August 4, 1934, the administratrix commenced garnishment proceedings against the Employers' Liability Assurance Corporation, The Underwriting Members of Lloyds, and T. H. Mastin & Company, attorneys in fact for The Subscribers at Consolidated Underwriters. The garnishment is on the theory that the liability policies of the three named garnishees issued to the Pioneer Silica Products Company covered the injury Tomnitz received. A jury trial resulted in a finding that, at the time of the service of the garnishment writs, the garnishees were indebted to the Pioneer Silica Products Company as follows: The Employers' Liability Assurance Corporation, $ 10,000; The Underwriting Members of Lloyds, $ 15,000; and T. H. Mastin & Company, $ 5000. The jury's verdict limited total recovery of garnisher to $ 15,000 with interest at six per cent from April 5, 1933, which amounted to $ 1897.50. The verdict also included costs in the sum of $ 153.15, which had accrued in the Tomnitz case, and for which garnisher was liable. Including interest and cost garnisher's recovery was limited to $ 17,050.65.

On the day the verdict was returned the court ordered that the garnishees, within 10 days, pay into the registry of the court the $ 17,050.65. Motions for new trial were duly filed. The garnishees failed to pay into the registry as ordered, and on June 4, 1935, the court entered formal judgment against the garnishees for $ 17,050.65, but the judgment liability against each garnishee was limited in the judgment as in the verdict of the jury. Motion for new trial by T. H. Mastin & Company was sustained. The motions of the other two garnishees were overruled, and The Employers' Liability Assurance Corporation alone appealed.

Hereinafter we refer to the parties to this appeal as garnisher and garnishee, and refer to the Pioneer Silica Products Company as the judgment defendant.

The pertinent provisions of the policy issued by garnishee to the judgment defendant are:

"The Employers' Liability Assurance Corporation, Limited, of London, England (hereinafter called the corporation), hereby agrees with the assured named in the declaration attached hereto, and made a part hereof, as respects bodily injuries, including death at any time resulting therefrom, covered by this policy and accidentally sustained by any person or persons employed by the assured, as follows:

"Agreement I. (a) To settle or to defend in the manner hereinafter set forth against claims resulting from the liability imposed upon the assured by law for damages on account of such injuries. . . .

"Agreement VI. This policy covers only such injuries so sustained by reason of accidents occurring within the policy period." (Italics ours.)

Garnishee in effect makes three assignments, viz.: (1) That silicosis resulting from the...