210 A.D. 720 | N.Y. App. Div. | 1924
Though the appeal is taken by the employer and carrier, the one question in the case is whether or not the policy of insurance covered the risk, inasmuch as the location of the factories, shops, etc., of the employer, at the time the policy was written, and as .defined therein, was .at 200-204 Osborn street, Brooklyn, N, Yv
The carrier had neVer been notified of this change of location. The employer had notified the insurance broker and this broker notified Bartow & Wood, who were insurance agents, but they were not general agents of this carrier, and, in handling compensation insurance for the carrier, acted only as special agents or brokers. These agents did not, until after the accident, notify the carrier. The policy of insurance was never sent to the broker and never had any indorsement thereon and no change has been initialed thereon by any agent. In the findings the Industrial Board has made no reference to this change of location. The policy contains the following: “ No condition or provision of this policy shall be waived or altered except by an indorsement attached hereto signed by the Manager and Attorney of the corporation; nor shall notice to any'agent, nor shall knowledge possessed by any agent or by any other person, be held to effect a waiver or change in any part of this contract. Changes in the written portion of the declarations forming part hereof (except Items 2, 3 and 4) may be made by the agent countersigning this policy, such changes to bind the corporation when initialed by such agent.” Item 3 of the declarations is: “Locations .of all factories, shops, yards, buildings, premises or other work places of this employer, by Town or City, with Street and Number — 200-4 Osborn St., Brooklyn, N. Y.” We have then an insurance policy defining the location of the employer’s plant at one location, namely, that defined in the policy, while the accident occurred at a time when the employer had no part of its plant at this location and while its plant was at another and different location.
The relation between the employer and the carrier is entirely contractual. As said in Gans v. Ætna Life Ins. Co. (214 N. Y. 326, 330): “ The intent of the insured and the company * * * as expressed, binds and obligates both of the parties. Presumptively, their intent is expressed by the natural and ordinary meaning of their language referable to it and such meaning cannot be perverted or destroyed by the courts through construction. .Where the parties by their words have left no fair reason for doubt, there is no just or defensible excuse for construction.” While the policy should be construed, whenever construction is permissible, most favorably to the insured, the phraseology being the carrier’s, the coverage of the policy cannot be extended by the courts beyond
The question in Matter of Jaabeck v. Crane’s Sons Co. (238 N. Y. 314) is very different. In that case the Court of Appeals held that the employee had been on the payroll of the company and at the time the injury was received was in fact on the payroll. He was employed regularly to do carpenter work and was doing such work under the direction of the foreman of the employer at the time of the injury. The class of risk was covered by the policy.
The award against the carrier should be reversed and the claim dismissed; the award should be affirmed as against the employer.
All concur.
Award against the insurance carrier reversed and claim dismissed, without costs. Award against the employer unanimously affirmed, without costs.