Wagner Electric Corporation v. OCEAN ACC. & GUARANTEE CORP.

• Decision Date: 12 November 1929
• Docket Number: No. 8564.,8564.
• Citation: 36 F.2d 186
• Parties: WAGNER ELECTRIC CORPORATION v. OCEAN ACCIDENT & GUARANTEE CORPORATION, LIMITED, OF LONDON, ENGLAND.
• Court: U.S. Court of Appeals — Eighth Circuit

36 F.2d 186 (1929)

WAGNER ELECTRIC CORPORATION v. OCEAN ACCIDENT & GUARANTEE CORPORATION, LIMITED, OF LONDON, ENGLAND.

No. 8564.

Circuit Court of Appeals, Eighth Circuit.

November 12, 1929.

Charles A. Houts, of St. Louis, Mo., for appellant.

Frank H. Sullivan, of St. Louis, Mo. (Jones, Hocker, Sullivan & Angert and Ralph T. Finley, all of St. Louis, Mo., on the brief), for appellee.

Before VAN VALKENBURGH and GARDNER, Circuit Judges, and WOODROUGH, District Judge.

VAN VALKENBURGH, Circuit Judge.

October 21, 1915, appellee issued to the Wagner Electric Manufacturing Company, predecessor of appellant, a policy of accident insurance. The form used was that of an employers' liability policy ordinarily employed to indemnify the insured against loss by reason of the liability imposed by law upon the assured for damages because of injuries to its employees while engaged in the trade, business, or work of the assured as described therein. It appears, however, upon the face of the papers, that the assured in consideration of a reduced premium rate desired a modified indemnity policy, and, therefore, there was, at the time of issue placed thereon what is called an "Excess Insurance Endorsement" as follows:

"In consideration of the reduced rate at which the under-mentioned policy is written, the Corporation shall not be liable for any loss recovered against the Assured in connection with an accident covered by the said policy, unless such loss shall exceed the sum of Five Thousand Dollars ($5,000) in respect of any one person, or the sum of Ten Thousand Dollars ($10,000) in respect of any one accident, and then the Corporation shall only be liable for the loss recovered against the Assured in excess of the sums above mentioned.

"As a consequence of the above stipulation, it is agreed that (1) the Assured shall not be held to forward to the Corporation notice of every accident that may occur, but the Assured shall give to the Corporation immediate written notice of all claims made and suits brought on account of such accidents and (2) the Corporation shall not be liable for any medical attention whatsoever, nor for any expense of defense of suits except insofar as the Corporation may voluntarily assume such expense.

"The Corporation's liability under the policy for excess loss, as above stated, shall in no event exceed the limits mentioned in the policy.

"Nothing herein contained shall be held to vary, alter, waive or extend any of the terms, conditions, agreements or limitations of the under-mentioned policy other than as above stated."

It is quite apparent that this indorsement or rider as it may be called, expresses the real nature of the insurance contracted for, that the contract of insurance is to be considered and construed as a whole, and all its parts, so far as practicable, are to be harmonized and given force and effect. If the provisions in the policy proper and those in the rider are in conflict and inconsistent with each other, those of the latter govern. Ætna Insurance Co. v. Sacramento-Stockton S. S. Co. (C. C. A. 9) 273 F. 55. The form of the instrument, with its accompanying indorsement, strongly suggests that appellee had no standard printed form for the type of insurance which the assured desired; therefore, it undertook to supply the same by the quoted indorsement upon one of its regular forms. The result was that appellant carried its own insurance up to $5,000, and all thereafter, up to $5,000, together with some incidental charges and expenses, under certain specified circumstances, appellee, the accident company, was to carry.

In the instant case an accident occurred to one of appellee's employees. The insurance company was notified by letter as follows:

"May 25, 1920.

"Mr. Lee Turner, Railway Exchange Bldg., St. Louis. Mo. Re: August Baker, Ocean Policy No. 157273. Dear Sir: Enclosed please find copy of letter from Atty. Bohencamp who has been retained to represent the above employee.

"Yesterday I received a petition in the above case, of which I am sending you a copy. This case occurred during the time that your company was carrying our excess insurance.

"We have put this case in the hands of our attorney, Mr. C. A. Houts, of the Boatmen's Bank Bldg., and we will notify you of any developments which may be of interest to you.

"Very truly yours "A. R. Horn, Safety Engineer."

To this the insurance company made the following reply:

"St. Louis, Mo., June 1st, 1920 "46-Ec-2412-August Baker.

"Wagner Electric Mfg. Co., 6400 Plymouth Ave., St. Louis, Mo. Gentlemen: I have received your letter of the 25th inst. enclosing copy of petition which was served in the above case. Will you kindly forward to me a report of the accident, together with some investigation as to what occurred, and if possible, a doctor's report which will show the extent of the injury, together with any other information that would be of assistance to us in knowing what estimate to carry on this case.

"Appreciating your advice, I am, very truly yours,

"Leigh C. Turner "LCT:D Mgr. St. Louis Claim Dept."

The case proceeded to judgment in the sum of $10,000, in the circuit court of St. Louis county, Mo. Appellant...