173 Wis. 109 | Wis. | 1920
When the action between the respondent and Healey, the employee, came before this court, the nature of his employment was in issue and the following language was used in the opinion:
“He was a regular employee of appellant, and his work was not materially different at the time of the accident from that which he ordinarily did. He was a mechanic, kept cars in proper condition, and was working in the regular course of such employment at the time of the injury, therefore his employment was not casual.”
It is conceded by appellant that when the accident occurred the employee was in the regular scope of his employment, but it is claimed that he was engaged in racing when killed and that his death was the result of a hazard which was not insured. As supporting this contention it is argued, among other things, that the respondent knew that appellant could not write insurance on employees engaged in racing; that racing was a prohibited risk which was known to respondent ; that respondent knew that no classification or rates of premium including racing was on file with the industrial commission and that policies could only be written for risks contained in such classification.
It is further argued that Healey’s work as a pitman was more hazardous than the ordinary work in the garage, and that to extend the meaning of the policy to cover the hazard
Of course 'the language of the policy and the statute must be the chief guide in determining whether the policy covered this risk. Clause A, quoted above, is very broad and general in its terms and is intended to give protection for accidental injuries or death suffered at the places and in the kinds of business described. The description of the work included in the schedule is also quite comprehensive.
Appellant’s counsel claim that clause E of the policy, above quoted, which excepts any loss or liability for injury or death not included in the schedule, should prevent a recovery. This clause, however, must be construed in connection with paragraph 6, above quoted, which provides that if work is done not included in the description given, the policy shall be construed to cover such work, and provides for making the premium charge in the mode specified. Appellant’s counsel give to this clause a very free construction, arguing that it has a different meaning from that expressed in' the language used in its "literal sense. And they claim that if cannot be said to cover a prohibited risk. There is no express prohibition in the policy or the statute against extending insurance to the kind of' wo'rk in which Healey was engaged or'even against actualracing. The fact that a kind of. .work is .'hazardous or morehazarddusthan other-forms of work does not preclude-insurance.' ' ' '
" The' policy" must be interpreted in’'.connection.' with -the statutes on • the-subject (sub.-2, sec. 2394^ — 24,".and' sub.T, ‘sec. 2394 — 27). - The former statute provides:, “An'employer liable under this act to pay compensation shall insure payment of such compensation'in' some -company-authorized to- 'insure such’:'liability '/in '-'this state unless "such' 'employer 'shall be exempted Tront su'ch/insuran'ce by the industrial Com-mission.”:' The-statute; theii. proceeds'-to state the' mode:'Of obtaining the exemption;..' : .vevshc. a-
The respondent had'elected to beeonie subject'to the terms
Much of appellant’s argument bearing on the intention and knowledge of respondent is based upon the fact that it paid employees for. minor injuries incurred in previous races and had paid its drivers for injuries received in the same race in which Healey was killed, .and had made no claim upon appellant for reimbursement. It is said that “this shows that assured did not consider racing covered until they had a real expensive accident.” This position is untenable. None of the previous accidents are shown to have occurred during the period that the policy in question was in force. We are not shown'the terms of-previous policies. Even if respondent did not -consider this class of injuries covered .under previous policies, it shows nothing as to its under- • standing of its rights under this policy, which was drawn under -its direction to have it cover all employees.. -If it - showed anything it-would show that injuries-of the kind in question -may have been- in respondent’s mind .as those-not .- previously covered and for which it then wanted insurance. That respondent did not make,-claim for reimbursement .for .amounts paid to its-drivers who-were-injured in this race -is not very significant,, for-they were-engaged .only for-the -occasion .in the-absence of. its-regular drivers...
• • •The claim.of knowledge of- respondent that racing.was uninsurable- is further, based -upon -the fact that it had- been • refused a personal accident.policy, upon a.race driver.. This seems to us an entirely different matter -from the insurance, -under, the-compensation-act, of..a whole automobile business,
Considerable other testimony was given by both parties relating to the knowledge and intention of respondent and appellant at the time the policy was issued. There might be language in a policy so doubtful or ambiguous that parol evidence of this character would be quite controlling in interpreting its real meaning. But as we construe the policy, in connection with the statute and the former decision of this court above quoted, this is not such a case.
It is significant that the only exception found in the schedule relates to mining and blasting. Applying the ordinary rules for the construction of insurance policies, if the company had intended to avoid liability suffered in other kinds of work in-this business of the respondent the exemption should have been expressed.
• Appellant urges that the familiar rule as to the strict construction of policies against the insurer does not apply in -this-case:because,-.it-is claimed, respondent framed the policy. We do not feel the need of -relying on this rule, but it should -be noted that we -find-no proof that the insured wrote the 'policy,--but-merely-that, the insurance agent was.referred to its attorneys to see that it was properly covered.
It is our-'hplding that.the risk was carried by the appellant.
By the Court. — Judgment affirmed.