137 Minn. 88 | Minn. | 1917
Plaintiffs in November, 1915, entered into a contract to build a highway near Wayzata, Minnesota, and thereupon applied to defendant, a casualty insurance company, for an insurance policy against risks growing out of the Workmen’s Compensation Act. The application contained this statement: “The assured does not operate a steam or electric railroad, switch or sidetrack in connection with the risks described in statement 4, except as follows: Description — No exceptions.” A paTt of the equipment to be used and used by plaintiffs in the prosecution of their work consisted of small steam locomotives, commonly called “dinkey engines,” hauling Peteler dump cars upon temporary narrow gauge tracks of steel rails and wooden ties. Defendant issued its policy on the representations made, which are also embodied in the policy; but neither defendant nor its agents, in the transaction, knew that plaintiffs, in the conduct of their work, intended to use or used the equipment mentioned. Afterwards one John W. Fite, an employee of plaintiffs, met death by accident while operating one of the “dinkey” engines in the construction of the highway referred to, and plaintiffs were compelled to pay his widow the amount specified in the Workmen’s Compensation Act. When notified of the accident to Fite defendant refused to recognize any liability, declined to defend
The court below evidently came to the conclusion that the statement or representation above quoted in the application was a misrepresentation of a material fact connected with the risk. Plaintiffs, on the other hand, insist that their equipment of dinkey engines, dump cars and track does not fairly come within the meaning of the phrase “steam railroad” used in the application. The policy issued and accepted by plaintiffs provides that the risk is assumed “in consideration of the premium and of the statements contained in the schedule hereinafter set forth, which statements the assured makes and warrants to be true by the acceptance of this policy. The words of the application are made a part of the policy. Hence the language of the quoted statement must be given effect, and if not true the policy is avoided. No strained interpretation should be given the words used. It may be doubted whether their meaning, standing alone, is so clear as to exclude a consideration of surrounding circumstances and a reference to other provisions in the policy. The defendant was engaged in insuring against risks placed upon employers of labor by the Workmen’s Compensation Act. Plaintiffs, employers of men, desired protection. Both necessarily understood that the dangers of the work affected the risk and the premium. Plaintiffs must have realized that the reference in their application to steam railroad would not be taken to mean a commercial ■railroad. Neither party could have had in -mind that, in constructing a highway, it could possibly have been contemplated that the contractor might operate a commercial steam railroad. And both, no doubt, knew that in heavy grading work, such as building the modern highway, contractors commonly employ Peteler dump cars hauled by small steam locomotives on temporary rail tracks, and that there are certain dangers in operating locomotives upon temporary tracks quite similar to if not even greater than, those attending the operation of the commer
It is true that in the case cited, as well as in Schus v. Powers-Simpson Co. 85 Minn. 447, 89 N. W. 68, 69 L. R. A. 887, the court was considering and giving effect to a remedial statute. The same statute was 'involved in Funk v. St. Paul City Ry. Co. 61 Minn. 435, 63 N. W. 1099, 29 L. R. A. 208, 52 Am. St. 608, where it was held that it did not include employees on a street railway. The court in each case gave controlling weight to the evident intent of the legislature to protect against railroad hazards. So here, we think, great weight should be given to the intent and understanding of the parties as evidenced by the circumstances surrounding the transaction that the risk did not involve steam railroad Hazards. We tHink the court below was right when holding that the representation must be taken to relate to such a railroad as might likely be used in the work plaintiffs had in hand. And to this class plaintiffs’ equipment belonged.
In view of the conclusion we have reached, the remaining question, of attorneys’ fees, needs no consideration.
The order denying a new trial is affirmed.