133 Ga. 326 | Ga. | 1909
The Georgia Iron and Coal Company, hereinafter called the Coal Company, brought an action against the Ocean Accident and Guarantee Corporation, hereinafter called the Corporation, the substance of the petition being as follows: The defendant, which is a London corporation, is represented by an agent in the city of Atlanta, Ga., and is indebted to petitioner in the sum of $5,000, because of the following facts: On Oct. 10, 1901, defendant entered into a contract of insurance with petitioner, whereby it agreed to pay petitioner, in respect to any loss from common law or statutory liability, for damages on account of bodily injuries accidentally suffered within the period of the contract by any employee of petitioner, upon certain conditions set out, the full amount of such sum as petitioner should have to pay upon judgment recovered against it at the final termination of any litigation which might arise on account of such bodily injuries; the total recovery under the contract in respect to any one person being limited to $5,000. Under the contract, petitioner was insured against damages and recovery from it for any bodily injuries sustained by any person working upon its premises in the capacity of surface ore or underground miners. Among the persons so employed was one John Simonds. On Dec. 16, 1901, while the contract of insurance was in force, John. Simonds accidentally suffered bodily injuries upon the premises of petitioner while working in connection with petitioner’s business. Thereafter he brought suit against petitioner, of which notice was given to the Corporation, as required by the provisions of the policy, in which a verdict and judgment were rendered against it for $4,375, which judgment bore interest from date at seven per cent, per annum. This litigation cost the amount of $492.15, which, on Dec. 31, 1904, was paid by petitioner. The jitdgment was paid by it on Dee. 30, 1904. On account of such damages recovered by Simonds petitioner
The defendant’s answer, while admitting some of the allegations of the petition, denied all of them tending to fix liability upon it, and alleged that, no matter what sum was paid to Simonds by the petitioner, the defendant was under no contract, legal or ■moral, to pay petitioner any part of it.
A copy of the policy of insurance was attached to the petition. It was headed, “Employers’ liability Policy.” The paragraphs of. the same which are here material are as follows: “That the Corporation will pay to the Assured, . . . subject to the subjoined general agreements, as conditions, in respect of any loss from common-law or statutory liability for damages on account of bodily injuries, accidentally suffered within the period of this policy, by any employee of the Assured while on duty on the premises hereinafter mentioned, or upon the ways immediately adjacent thereto, provided for the use of such employees or for the public, in and during the operation of the trade or business hereinafter described,. . . eighty per cent, of such sum for which the Assured shall . . effect a compromise with the injured person, . . , but such sum paid by the Assured shall not exceed the wages of the injured person for the period of disability, and in no event shall it exceed the average earnings of the injured person for twenty-six weeks.” “This policy does not cover any loss from liability for injuries to . . any child employed by the Assured contrary to law; nor to . . any child employed under fourteen years of age, unless such child is included in the schedule of employees hereinafter mentioned. . . The premium is based on the compensation to employees to be expended by the Assured during the period of this policy. . . In every case [of cancellation] the earned premium shall be computed on the pay-roll for the year indicated by the actual expenditure for wages during the time the policy shall have been in force. . . The check of the Corporation mailed to the address of the Assured as given herein shall not be payable until the Assured shall have rendered to the Corporation a full statement of the wages expended to the date of cancellation. . . The Corporation shall have the right and opportunity at reasonable times to examine the books of the Assured, so far as they relate to the compensation paid to his employees. . . The
To some of the evidence rejected there were other objections made, but evidently the judge did not consider them, as he excluded all the evidence offered, upon the ground that the contract was unambiguous. Had it been indicated that the other objections were valid, it may be possible that the grounds thereof might have been removed by the plaintiff. We therefore do not decide the question whether such other objections should have been sustained, but leave it to be passed upon by the court below upon another trial, which must be had.
Judgment on the main hill of exceptions reversed; judgment on the cross-hill affirmed.