156 A. 73 | Pa. | 1931
De Baccias, a contractor, was engaged in altering a building, and Mary Lewis, a stranger, one of plaintiffs, *506 was injured through the negligent performance of this work by one of the former's employees. De Baccias had a contract of indemnity with defendant, insuring him "against loss _____ for damages on account of bodily injuries _____ suffered as a result of an accident occurring _____ by any person or persons not employed by the assured, while at or about the work of the assured described in statement 4 of the schedule, during the prosecution of the said work." The work described in statement 4 of the schedule is "carpentry." Plaintiffs sued De Baccias and under the provisions of the policy the latter notified the insurer of the accident. When the summons was served it was immediately forwarded to defendant, about July 1st. It was not until the following January that the insured was notified by the company that it denied liability and would not defend his case. A verdict was later recovered against De Baccias; Mary Lewis and her husband then instituted this action against the insurer under the provisions of the policy which permits a judgment creditor to recover a judgment against the insurance company in the same way that the insured might recover had he paid the judgment. The court below held that neither the original statement of claim nor the amended statement was sufficient in law to sustain the recovery from the insurance company. Judgment was entered for defendant and this appeal followed.
Both statements of claim by plaintiff contained an averment that De Baccias "was engaged in doing certain alteration work about premises 2810 'D' Street, _____ Philadelphia. In connection with said work, it became necessary for De Baccias to lower the wooden floor of premises 2810 'D' Street. That incidental to the lowering of the floor, and in order to comply with building laws and regulations of the City of Philadelphia, it became necessary to excavate the cellar of the said building in order that there might be sufficient space between the floor of the cellar and the floor above. That while *507 his employee was engaged in lowering the floor and in excavating the cellar, a small quantity of dirt was thrown by one of the employees of De Baccias on the sidewalk fronting premises 2810 'D' Street, causing Mary Lewis, one of the plaintiffs, not being employed by the said De Baccias, to fall and receive certain bodily injuries."
The court below held that the word "carpentry" did not embrace excavating a cellar as described in the statement. A contract of indemnity insurance should be construed so as to give effect to the intent of the parties: Bingell v. Royal Ins. Co., Ltd.,
If the floor was so close to the ground that it was necessary for earth to be removed, not only to replace the floor in the new position, but to give sufficient air space to preserve properly the floor from decay when completed, such work was a necessary part of the carpentry contract undertaken and implied from the nature of the work itself. If, however, De Baccias undertook to excavate for a cellar, going beyond the implied limitation in the policy, — that is, what was necessary and incidental, — a different question would arise.
We stated in Malley v. American Indemnity Co.,
Judgment is reversed with a procedendo.