Tuscaloosa Veneer Co. v. American Mut. Liability Ins. Co.

• Decision Date: 16 January 1941
• Docket Number: 6 Div. 740.
• Citation: 240 Ala. 444,199 So. 868
• Parties: TUSCALOOSA VENEER CO. ET AL. v. AMERICAN MUT. LIABILITY INS. CO.
• Court: Alabama Supreme Court

199 So. 868

240 Ala. 444

TUSCALOOSA VENEER CO. ET AL. v. AMERICAN MUT. LIABILITY INS. CO.

6 Div. 740.

Supreme Court of Alabama

January 16, 1941

Appeal from Circuit Court, Jefferson County; J. Edgar Bowron, Judge.

Action by the Tuscaloosa Veneer Company, a partnership composed of H. C. and O. E. Howell, as partners, who are joined as individuals, against The American Mutual Liability Insurance Company of Boston, for breach of a standard Workmen's Compensation and Liability Insurance Policy. From a judgment for defendant, plaintiffs appeal.

Affirmed.

Chas W. Greer and B. F. Smith, both of Birmingham, for appellants.

London & Yancey and Fred G. Koenig, Sr., all of Birmingham, for appellee.

FOSTER Justice.

This is a second appeal. See 237 Ala. 187, 186 So. 133, where the facts are stated and the conclusion of law reached, that this appellee should have had the affirmative charge. On another trial, it was so given, and plaintiff takes this appeal.

Appellant here, while seemingly not finding fault with the former opinion, makes his argument conflict with the law as it is there interpreted. He insists that on this appeal the facts differentiate the two cases thus shown, in that in this record the evidence shows that the woods operations in question were conducted solely to supply necessary material for the veneer plant, and that such evidence did not so appear on the former appeal. He argues that on that appeal the woods operations were as though they had no connection with the veneer plant.

If the court had so construed the record, there would have been no effort at argument to show that they were not incidental to the veneer plant. A simple statement that they were separate and distinct is all that would have been needed. But the argument of the court was apparently on the tacit assumption that the woods operations were conducted to supply material to the veneer plant.

The earnest contention made on this appeal is the occasion for a further study of the question. But we regard it as more in the nature of a reconsideration of the same question, than of a different one. That is whether the woods operations were either necessary, incidental or appurtenant to or connected with the veneer plant, within the meaning of a liability policy of insurance covering workmen of insured under the facts of this case.

The policy in question did not in terms cover woods operations but only the veneer plant at Tuscaloosa, with a clause that should insured engage in any operations necessary, incidental or appurtenant to the mill or connected with it, he agreed to pay the premium on such operations at the time of final adjustment of the premium under condition "C" permitting an audit and inspection and the policy automatically covers liability to employees in such operations.

Insured was sued on the claim and held liable. Tuscaloosa Veneer Co. v. Martin, 233 Ala. 567, 172 So. 608. The insurer defended that suit in co-operation with insured and his counsel, but in doing so denied its coverage, and refused to pay the judgment.

Many cases have been cited by counsel touching the question of whether certain operations were incidental to others. They are not here controlling, since each is dependent upon its respective circumstances and the particular purpose of the inquiry, and none of them were such as this.

We will summarize the facts here shown involving some repetitions. The woods operations, conducted ten miles distant, were not in contemplation when the policy was written; but they were conducted solely to supply necessary material, which could be otherwise procured; the policy automatically covered operations not then conducted nor contemplated, if incidental to the plant operations or connected with them, and no notice of such operations was required by the policy to complete the coverage; for the coverage the basis of the premium rate declared in the policy was the entire remuneration earned during the policy period by all employees engaged in the business operations of the plant and others necessary,...