On March 8, 1911, Louis H. Bradford, defendant in error, in the district court of Carter county, sued iEtna Life Insurance Company, plaintiff in error, on the fоllowing “binder,” issued to him by defendant, for value:
“Accident and Liability Department,
iEtna Life Insurance Company,
Hartford, Connecticut.
“No.-41324. Limits: One person, $5,000.
One accident, $10,000.
Binder.
Date, Nov. 24, 1909.
“The iEtna Life Insurance Company of Hartford, Conn., hereby binds insurance for a period оf ten days from the above date, pending the issue of'a regular policy at the rate and subject to the limits of liability stated hеrein and subject also to the agreements and conditions of the policy form E. L. 20, PL H GL Y AY and WC, -as issued by this company on the risk of, namе, the Ardmore Steam Laundry, L. H. Bradford, Prop., address, Ardmore, Okla.
*72 “Class E Pay Roll $5,000. Rate, 75c.
“Description of business: Laundry (with guards), Ardmore, Oklahoma.
“Notice. — It is hereby аgreed that if policy when issued is not accepted by the assured or if this insurance is not accepted by the compаny, the assured will pay the premium earned under this binder from'the date thereof until the binder is returned to the agent issuing same.
“Report Accidents Immediately.
“This binder will be void if thе agent or other representative of the company has changed or waived any clause thereof.
“The insuranсe under this binder covers only the risk described above. If the risk is accepted by the policy, the policy will bear even date with the binder. If the risk is not accepted the agent will collect the earned premium at the rate named for the pеriod of this binder. This binder is not valid unless signed by an authorized agent of the company.
“Slaughter & Yerschoyle, Generál Agents.”
After setting it forth, his petition substantially states that, within the specified ten days, one of his employees within the risk was injured by having her hand caught and crushed in a mangle used in said laundry; that he had been sued and paid a judgment in damages for said injury; that the loss to him was covered by the “binder,” and prayed judgment over against defendаnt for $1,050, the amount of the loss.
The petition fails to set forth the terms of the policy referred to in the “binder,” and proceeds upon the theory that the “binder” contained all the terms and conditions' of the contract of insurance. To this defendant filеd a motion to make more definite and certain, the object of which was to require plaintiff to set forth and declarе upon the policy. But the same was overruled, as was also a ■demurrer to the petition. Thereupon defendant answеred, and interposed a general denial, and pleaded in substance that the *73 "binder” was only intended to furnish ad interim, insurance on a laundry with guards, and that the premium paid therefor was only applicable to such; that, by the terms of' said “binder,” said insurance was subject to the agreements and conditions contained in defendant’s policy for E. L. 20, which was alleged to be an employers’ liability policy used for steam laundries whose mangle is duly guarded, and that at the time the injury was sustained, resulting in the loss complained of, the mangle causing the injury wаs unguarded; that the policy issued to plaintiff pursuant to the terms of said “binder” was in accordance with said form No. 20 and was therеafter in due time delivered to him and by him accepted and retained. There was trial to a jury and judgment for plaintiff, and defendаnt brings the case here. On the trial defendant offered in evidence a copy of the policy. There was no ■question that it was in form E. L. 20,. as pleaded, or that the original duly issued to and was in possession of plaintiff at the time he sued. But the court sustained аn objection thereto, excluded it from the jury, and defendant excepted. It provided:
It is hereby understood and agreed that all the mangling machines owned or operated by the assured shall be provided with fixed guards or safety feed tables adjusted tо the point of contact of the roll, so as to prevent the fingers or hands of the employes from being drawn into the rolls, аnd that such guards shall be maintained during the term of this policy. Any failure on the part of the assured to provide and maintain such guards shаll relieve the iEtna Life Insurance Company from liability on account ■of personal accidents due to such negleсt, and this policy is accepted by the assured accordingly.”
The mangle in which the employee’s hand was caught was unguarded, and there can be no doubt that the loss was excepted by the terms of the policy. The recovery was perhaрs owing to the fact that the court adopted plaintiff’s theory and, in effect, instructed the jury that the policy was no part of the contract. The ■court was wrong. If the policy formed a part of the contract, which was executed and delivеred, the failure to set out its terms and conditions and allege a compliance therewith or excuse a
*74
failure to comply was properly raised by the demurrer, which should have been sustained. This was precisely the fact in
Home Ins. Co. v. Favorite et
al.,
“If such a policy formed a part of the сontract, which was made and delivered, the failure to set out its terms and conditions in the declaration, and to have averred a compliance therewith, or an excuse for a noncompliance, should * * * have been taken advantаge of upon demurrer.”
And, after reversing the case, in the syllabus, said:
“Where a contract is executed which refers to and makes the conditions of another instrument а part of it, the two- will be construed together as the agreement of the parties.”
This case was relied on by us in
United States Fidelity & Guaranty Co. v. American Bonding
Co.,
“Of course the ‘binder’ and the bond referred to were thus made a part of one and the same agreement, and should be construed together in determining what the contract of insurance was, and the liability, if any, of the company thereon.”
We are therefore of opinion that the demurrer to the petition should havе been sustained, and the cause should be reversed for a new trial. It is so ordered.