No. 21757 | Miss. | Mar 15, 1921
delivered the opinion of the court.
This case involves the construction of an employer’s liability insurance contract between the appellant and ap-pellee. The appellant assurance corporation issued to the appellee packing company an insurance contract wherein it agreed to indemnify appellee against loss or damáge from liability imposed by law for damages on account of bodily injuries sustained by its employees at its canning plant.
Following this, Charles Breal, an employee of appellee, was injured in the plant of the appellee and sued appellee to recover damages. The assurance corporation defended this suit under the contract, and by consent of all parties settled the case for three thousand, five hundred dollars, with the understanding that all of the legal rights of both
Briefly stated, the facts are that the insured appellee packing company was engaged in the business of canning and packing shrimp at Biloxi, where it maintained a plant in which a large kettle for cooking shrimp and other products was kept and used. The insured had numerous employees engaged in its business of canning and packing shrimp. The injured employee, Charles Breal, was performing, the duty of repairing a gasoline boat belonging to the insured packing company and used by it in the shrimp business, which boat was idle and was mobred at the plant of the packing company for repairs and was being repaired by the said employee Breal. Immediately prior to being hurt Breal was working on this gasoline boat, and, having left it, was going through the packing room of the plant to get some article to be used in repairing the boat, when the cover of a large process kettle fell upon him and caused his injury, for which he sued, and is the original cause of the present suit.
The suit by Breal was predicated on the ground of liability for negligently failing to furnish a safe place in which to work, in that the top of the process kettle was so insecurely fastened to the kettle that it was liable to fall off and injure persons near it.
The appellant assurance corporation contends that it is not liable to the appellee packing company for the injuries to Breal, because: First, the insurance contract did not cover an injury to the employee Breal, as no premium was charged on the basis of his compensation, as it was not included in the schedule; and, second, because the employee Breal was injured while engaged in a “vessel hazard,” which the policy expressly provides is not covered in thé insurance contract.
We shall here set out the material parts of the insurance contract, which are as follows:
“In consideration of sixty six and 80/100 dollars (|66.80) estimated premium and the warranties of the assured hereinafter set forth the Employers Liability Assurance Corporation, Limited, of London, hereinafter called the corporation, hereby agrees to indemnify the American Packing Company of Biloxi, county of Harrison, state of Mississippi, hereinafter called the assured, against loss from the liability imposed by law upon the assured for damages on account of bodily injuries, including death resulting therefrom, accidentally suffered by any employee or employees of the assured, while within or upon the premises of the assured at the location described in the schedule, or the premises or ways adjacent thereto, by reason of the operation of the trade or business described in the schedule, including the making of repairs and such ordinary alterations as are necessary to the care of the pi-emises and plant ánd their maintenance in good condition, and including drivers and drivers’ helpers wherever employed in the service of the assured, provided such bodily injuries or death are suffered as the result of accidents occurring within the period of twelve months, beginning on the 29th day of January, 1918, at noon, and ending on the 29th day of January, 1919, at noon, standard time, at the place where this policy has been countersigned, subject to the following conditions.”
Condition A limits the liability of the insurer to $5,000 in any personal injury case and $10,000 in a death case.
Condition B provides as follows:
“The premium is based on the entire compensation of the employees of the assured mentioned in the schedule,*893 during tbe period of this policy. If such compensation exceeds the sum set forth in the schedule, the assured shall pay the corporation the additional premium earned when determined; if such compensation is less than the sum set forth in the schedule, the, corporation will return the unearned premium when determined; but the corporation shall receive or retain not less than twenty-five dollars it being agreed that this sum shall be the minimum earned premium.”
Condition C is as follows: “This policy does not cover on account of injuries caused by any person unless his compensation is included in the estimate set forth in the schedule, or to or caused by: (1) Any child employed by the assured contrary to law, or any child employed under fourteen (14) years of age whete no statute restricts the age of employment; (2) any person in connection with the making of additions to or structural alterations in or the construction of any building or plant, or in connection with wrecking or demolition of any building or plant, or any part thereof, unless a written permit is granted by the corporation specifically describing the work and an additional premium paid therefor.”
Condition K is as follows: “The assured shall, whenever the corporation so requests, furnish the corporation with a written statement of- the amount of compensation earned by his employees during any part of the period of this policy, and at the end of the period of this policy the assured shall furnish the corporation with such statement covering the full period of this policy. Any of the corporation’s authorized representatives shall have the right and opportunity upon the request of the corporation to examine the books and records of the assured as respects compensation earned by the employees of the assured, provided such examination to be made within twelve months after the expiration of this policy and the assured shall render reasonable assistance; but the rendering of any estimate or statement or any settlement shall not bar the
The schedules of warranties attached to the policy so far as they are material herein are as follows:
“Statement 1: Name of assured, American Packing Company.
“Statement 2: Address of assured, Biloxi, Mississippi.
“Statement 4: Kind of trade, or business, all operations incidental to the business of cannery (no can manufacturing and no vessel hazard).
“Clerical office employees.
“Estimated number of employees is-.
“Estimated compensation for. period of policy, five thousand dollars.
“Premium rate per one hundred dollars of compensation, one dollar and thirty-three cents and six mills.
Five cents and five mills.
“The estimated compensation covers the compensation of all persons in the business carried on by the assured, at the locations mentioned in this schedule, including drivers and drivers’ helpers (if no concurrent teams policy is carried with this corporation), and including the salaries or other compensation of president,, vice president, secretary, treasurer, clerks and office employees, excepting as follows :
“No exception.
“Statement 10: The amount of compensation to employees for the twelve months to January 29th last, was five thousand dollars about.”
It seems clear that the insurance was issued to cover any employee while within or upon the premises of the insured packing company by reason of the operation of the business, and this employment included the making of repairs necessary to the plant or any part thereof. But the insurance did not extend to injuries received by an employee through “vessel hazard,” nor to any employee who was not in the designated class of employees named in the schedule wholse compensation was included in the estimate as a
But we do not think the injury in this case was due to “vessel hazard” mentioned in the contract, because, as we understand it, the provision of “vessel hazard” injury means an injury received by an employee in the operation of a vessel, or while carrying on the necessary work of the plant through the operation of a vessel, and has reference to the risk of sea peril. The vessel upon which the injured employee was working at the time of the injury was an idle launch which was being repaired on the premises of the plant and was not in operation on the waters as contemplated by the contract.
But, more than this, the employee Breal was not injured while actually !repa(iring the vessel, but received his injury by the top of a process kettle turning over on him within the building of the plant on the premises while he was engaged in the performance of his duty, incidental to and connected with the operation of the plant, as mentioned in the contract of insurance.
As to the second proposition presented by the appellant, we think that, under condition B in the contract, insurance against accident to the employee Breal was covered in the policy for the reason that his compensation, as one in the class of designated employees, was included in the estimated amount of compensation paid employees in the schedule upon which the premium was determined and charged. Therefore we are of the opinion that the insur-ahee policy covered the risk of injury to the employee Breal as he was included as one of the employees in the schedule, and that his injury was not due to “vessel hazard,” but was received while performing his duty in operations incidental to the business of the appellee packing company while within and upon the premises of the packing company.
Affirmed.