32 P.2d 356 | Cal. | 1934
This is a companion case to that of Department of Water andPower v. Industrial Acc. Com., No. 14455, this day decided (ante, p. 638 [
The National Automobile Insurance Company seeks to set aside said award on the ground that the evidence before the commission was insufficient to show that the deceased at the time of his injury was in the employ of Mono Construction Company or that the National Automobile Insurance Company was the insurance carrier of the construction company at the time of the injury to said deceased.
[1] In addition to the facts set forth in the opinion in the case of Department of Water and Power v. Industrial Acc. Com.,supra, it appears without contradiction that the Mono Construction Company, not only employed the deceased and paid him his wages, but that at all times he was subject to certain orders of the construction company, and that the company had authority to discharge him at any time it was dissatisfied with his work. It further appears that Mr. Post of the construction company paid daily visits to the job, spending there almost the entire time of each day and keeping a general oversight over the operation of the shovels in charge of its employees. These facts were sufficient to support the finding of the commission that the Mono Construction Company as the general employer of the deceased retained and exercised some measure of control over Winkler at the time of his injury, and justified the conclusion of the commission that the construction company was liable to the decedent's surviving widow for compensation resulting from his death. The supporting authorities cited in the companion case ofDepartment of Water and Power v. Industrial Acc. Com., supra, furnish legal justification for the action of the commission in awarding compensation to said surviving widow under both the general and special employment of her deceased husband, and it is not necessary to restate them here. *645 [2] The further question presented on this appeal is embodied in the contention of petitioner that the evidence before the commission was insufficient to support its finding that petitioner, the National Automobile Insurance Company, was the insurance carrier of the Mono Construction Company with respect to the injury and death of the deceased employee. In the first place it is contended by petitioner that its liability under the policy of insurance is limited to the specific location named in a rider or indorsement attached to the policy. This rider reads as follows: "The insurance hereunder is limited as follows: It is agreed that, anything in this policy to the contrary notwithstanding, this policy DOES NOT INSURE: As respects injuries (or death resulting therefrom) sustained by any employees engaged in any operations other than those operations specifically rated and described as covered hereunder in the Classification of Operations schedule herein and that this policy shall only cover such operations of this Employer which are performed upon the following described premises or directly in connection with such operations: — 1427 North Sycamore, Hollywood, California." It will be noted that the policy of insurance purports to limit the activities of the construction company to a specific location and to certain specified operations. These operations, as set forth in the body of the policy under the heading of "Classification of Operations" were as follows: "Truckmen (N.O.C.). Payroll to include Drivers, Chauffeurs and their Helpers, Stablemen, Blacksmith and Repairmen, excluding only Clerical Office and Storage Warehouse Employees." The evidence shows that the address given in the rider was that of the employer, the Mono Construction Company's office, and from whence it carried on its business. The contention that it is not liable for the death of the deceased because his injury was sustained at a location other than that specified in the rider is without merit as it is apparent that the location given in the rider attached to the policy was only intended to designate the employer's place of business, and did not limit the liability of the insurer to injuries sustained at that particular location. This is made apparent by the "Classification of Operations" wherein the operation insured against is given as that of "Truckmen, etc." If, assuming for the time being, as contended by petitioner, the policy is limited *646 to injuries sustained by the employer while engaged in the trucking business, it is apparent that while its office or principal place of business is designated to be at a particular location, its operations necessarily extend far beyond that locality and into and over other and distant locations. It would be impossible for an employer to carry on a trucking business by housing his trucks upon his premises and keeping them there continually. The very nature of such a business contemplates that the trucks, or other vehicles used therein, shall be sent from place to place as the business requires, and away from and beyond the location where they are kept when not in use. We agree with counsel for respondents that it would be absurd to hold that the policy of insurance limited the activities of the employer to the location given therein, which, as we have seen, the evidence shows is merely the office or principal place of business of the employer.
[3] The further claim of the petitioner that its liability under the policy of insurance is limited to injuries sustained by its employees in the declaration of "Classification of Operations" specified in the policy of insurance, and that the "Classification of Operations" mentions simply, "Truckmen", including drivers, chauffeurs and their helpers, etc., presents a problem much more difficult of solution. The petitioner claims that its liability under the policy was limited to injuries sustained by employees of the construction company while engaged in an occupation within the terms of the policy and that the policy covers only "Truckmen", including drivers, chauffeurs, and their helpers, etc., and that as the deceased was injured while operating a gasoline power shovel, he was not at that time engaged in any occupation covered by the policy of insurance issued by petitioner.
The evidence before the commission showed, and that body found, that "Mark A. Winkler, deceased, while employed as a gasoline power shovel operator", sustained injuries arising out of and occurring in the course of his employment causing his death. While there is some evidence to the effect that the deceased during his employment by the Construction Company drove at times a truck for his employers, it is apparent that that service was only incidental to his regular employment as an operator of a gasoline propelled shovel. The evidence furthermore shows that at *647 the time he received his fatal injuries he was so employed. That there is but slight, if any, similarity between an ordinary truck and a gasoline shovel must be conceded. The operations and uses of the two machines are entirely different. It is not necessary here to describe either the operation or use of either of these instrumentalities, as they are matters of common knowledge. The two machines bear no resemblance to each other, and the term, truck, cannot by any stretch of construction be extended to include or embrace a gasoline shovel. Therefore, when the policy of insurance issued by petitioner limited its liability to injuries sustained by an employee engaged in the operation of a truck, can the insurance carrier be held for the death of an employee injured while operating a gasoline shovel?
In the case of Worswick Street Paving Co. v. Industrial Acc.Com.,
In the case of Pacific Coast Cas. Co. v. Industrial Acc.Com.,
The respondent relies upon the case of Ocean etc. Corp.,Ltd., v. Industrial Acc. Com.,
The policy of insurance issued by the petitioner must be construed as applying only to those employees of the insured named in the declaration of "Classification of Operations" set out in the policy. The wages or remuneration of these employees formed the entire basis upon which the premium paid to the insurance carrier was computed. It had no right to collect premiums based upon the wages paid to any other employees not named in said declaration of "Classification of Operations". It should not, therefore, be held liable for any injury sustained by any such employee. *652
That compensation insurance policies may be limited to certain specified employees of the insured is now definitely established by statute (Workmen's Compensation Act, sec. 31 [a]), and has received the approval of the courts. (Zurich Gen. Acc. etc. Ins.Co. v. Stadelman,
As the deceased at the time of his injury was not within the coverage provisions of the policy of insurance issued by the petitioner, the award against petitioner and in favor of the surviving widow of the deceased cannot be sustained. In so far as said award is made to run against the petitioner, it is hereby annulled.
Langdon, J., Shenk, J., Preston, J., and Waste, C.J., concurred.