61 Ind. App. 194 | Ind. Ct. App. | 1916
This appeal involves the construction of a contract, or policy for liability insurance, issued by appellee to appellant. The question presented is further narrowed by appellant’s admission in its brief that “the sole question presented is whether or not the policy covered the injury to appellant’s employe.” The suit was brought by appellee to recover certain premiums alleged to be due it on certain insurance policies issued to appellant. To the complaint appellant filed a third paragraph of answer, and also a counterclaim in which the facts set out are substantially identical with those of the third paragraph of answer. The substance of the facts averred in the third paragraph of answer and in the counterclaim is that appellant held a policy duly issued to it by appellee by the terms of which it agreed (1) to indemnify appellant “against loss from the liability imposed by law upon the assured for damages on account of bodily injuries or death suffered through the assured’s negligence, and as the result of an accident occurring while the policy is in force (a) by any employe or employes of the assured while within the factory, shop, or yard described in the said schedule, or upon the sidewalk or'other ways immediately surrounding the same provided for the use of such employes or the public, in and during the operation of the trade or business described in the said schedule; * * * (2) To defend in the name and on behalf of the assured any suit brought against the assured to enforce a claim,. whether groundless of not, for damages on account of bodily injuries or death suffered, or alleged to have been suffered, through the assured’s negligence,. by the persons described in subsections A and B
“(C) This policy does not cover loss from liability for, or any suit based on, injuries or death suffered or caused by any persons in connection with the making of additions or repairs to or alterations in any building, structure, or plant; or in connection with the construction, wrecking, or demolition of any building, structure, or plant, or any part thereof; but ordinary repairs when made by employes of the assured whose compensation is included in the estimate set forth in the schedule are permitted.”
It is also averred in substance that appellant paid to appellee the full amount of the premium on said policy and has complied with all the conditions thereof on its part; that during the period covered by the policy one Charles Smith was in the employ of appellant as a laborer in and about the ice and cold storage plant referred to in the policy, and was one of the employes contemplated and covered by the terms thereof and on whose account, in part, the premium of said policy was estimated and paid; that on May 15, 1911, appellant had contracted for the construction of an addition to its plant, involving the installation therein of certain appliances and machinery,, among which was. a certain ammonia coil, consisting of a heavy coil'of iron pipe of great weight; that it was delivered to appellant’s plant on a flat car; that said Smith was not engaged in the construction of the addition or in the installation of the appliances and machinery therein, but was engaged generally as a day laborer by appellant to do such work as he was required to
A demurrer to each of the pleadings was sustained and appellant refusing to plead further it was agreed that there was due appellee for the balance of premiums on the policies sued on, the sum of $317 and the judgment was rendered in favor of the appellee for that amount. Appellant prayed an appeal which was granted. The errors assigned are the sustaining of the separate demurrers to the third parar graph of answer and to the counterclaim.
It is not claimed that Smith was directly employed in the work of constructing the new addition for which a contract had been made but appellee contends that each of the pleadings shows that the work at which he was engaged when injured was “in connection with” the making of such addition and therefore that liability, if any, for such injury was not covered by the policy by reason of the exception in clause (c) thereof.
Note. — Reported in 111 N. E. 812. As to estoppel of employers’liability insurance company to deny liability under contract, -see Ann. Cas. 1912 D 909. See, also, under (1) 25 Cye Anno.-224e; (2) 25 Cye Anno. 224f.