United States Fidelity & Guar. Co. v. Bullard Gin & M. Co.

• Decision Date: 30 November 1922
• Docket Number: (No. 2655.)
• Citation: 245 S.W. 720
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. BULLARD GIN & MILL CO.
• Court: Texas Court of Appeals

245 S.W. 720

UNITED STATES FIDELITY & GUARANTY CO. v. BULLARD GIN & MILL CO.

(No. 2655.)

Court of Civil Appeals of Texas. Texarkana.

November 30, 1922.

Error from District Court, Smith County; J. R. Warren, Judge.

Suit by the United States Fidelity & Guaranty Company against the Bullard Gin & Mill Company. Judgment for defendant, and plaintiff brings error. Affirmed.

The United States Fidelity & Guaranty Company issued and delivered to the Bullard Gin & Mill Company, a private corporation, two policies of insurance, called "workmen's compensation and employers' liability policies," one dated September 3, 1918, which expired at midnight of September 3, 1919, and another dated September 3, 1919, which expired at midnight of September 3, 1920. The policies compensated and indemnified the insured company against loss by reason of any liability imposed upon said insured company under the workmen's compensation laws of Texas for damages on account of injury or death of employees. By the terms of the policies the premiums due and payable by the insured company were based upon the entire remuneration earned during the term of the policies by the employees of the insured company, except officers whose duties did not expose them to any operative hazard of the business. The insured company paid to the insurance company under each of the policies $91.95 as an estimate advance premium. As ascertained by an examination of the books, and based on the amount of compensation paid its employees (except officers) all and entire, there was due and payable by the insured company as premiums, over and above the advanced sum of $91.95, the sum of $234.75 under the first policy of September 3, 1918, and the sum of $776.55 under the next policy of September 3, 1919. Upon failure to pay these several sums of money due as premiums the insurance company brought the suit to recover judgment therefor against the insured company.

The insured company answered the suit and denied liability for the premiums, such as are based upon the employees distinctively engaged in making crates and boxes, upon the ground that it was engaged in the business both of operating a cotton gin and also in the manufacture of crates and boxes, and the policies covered only those employees employed at the gin, and not its employees distinctively engaged in the different work of making crates and boxes.

The case was tried before the court without a jury. The following is a summary of the findings of fact made by the court, viz.:

(1) The Bullard Gin & Mill Company is a corporation under the laws of Texas, and the purpose for which it was formed was "the construction or purchase and maintenance of mills, gins." Section 28, art. 1121, R. S. The company operated a cotton gin during the period of time from September 3, 1918, to the date of trial in December, 1921. The company also operated a box factory, and had a number of employees engaged in the manufacture of boxes and crates intended for use in shipping fruit and vegetables, from September 3, 1918, to date of trial in December, 1921. The box factory was located about 150 yards distant from the building in which the cotton gin and machinery was located, "and was a separate unit therefrom, but under the same management, and it employed hands separate from the cotton gin, and kept the pay rolls separate."

(2) That the provisions of each of the two policies were the same, and under each the United States Fidelity & Guaranty Company agreed with the Bullard Mill & Gin Company, a corporation, as follows (omitting parts not bearing upon the issues):

"Compensation.

"1. To pay in the manner provided by the laws of such states or commonwealths of the United States as are in force at the time this policy takes effect, or any subsequent amendments thereto, as are designated in item 3 of the declarations of this policy commonly known as workmen's compensation laws, any sum due or to become due from the employer because of any such injuries or death and the obligation for compensation therefor imposed upon the employer by such laws. It is agreed that all of the provisions of such laws covered hereby shall be a part of this contract as fully and completely as though written herein, so far as they apply to compensation for any personal injury or death covered by this policy while it shall remain in force. This obligation for compensation shall include all provisions of such laws respecting funeral expenses, medical, surgical and other attendance and treatment, nurse and hospital service, medicines, crutches and apparatus.

"Compensation will be paid by the company as required by law in the event that the workmen's compensation law of any state or commonwealth named in item 3 of the Declarations is officially declared extraterritorial in jurisdiction.

"Liability.

"2. To indemnify the employer against loss by reason of the liability...