Travelers Insurance v. Rooney

95 Vt. 109 | Vt. | 1921

Miles, J.

This is an action of contract on a workmen’s compensation and employers’ liability policy. The defendant pleaded a general denial and a declaration in set-off. The plaintiff sought to recover overdue premiums; while the defendant sought to recover under his declaration in set-off unearned premiums which he had paid on two of the plaintiff’s policies.

The policy upon which the plaintiff brought suit contained the following provision: “This agreement shall apply to such injuries so sustained by business operations described in said declarations, together with operations incident thereto, while conducted either at the work places described and defined or elsewhere in connection therewith. ’ ’

The business described was: “Logging, and lumbering operations, including transportation of logs to mill, but excluding operations of ‘logging railroad’. Payroll to include drivers and drivers’ helpers; also chauffeurs and chauffeurs’ helpers.”

The location of “all factories, shops, yards, buildings, premises or other work places ’ ’ of the defendant was fixed in the policy as at Mendon, Vermont. The defendant, during the existence of the policy in question, had a wood lot in the town of Chittenden, on which there was a considerable amount of pulpwood, and he entered into a contract with two men to cut that wood at a stipulated price per cord and paid for the work when it was completed according to the contract.

Upon this state of facts the plaintiff offered evidence tending to prove the amount paid these men as a basis of determining, in part, the amount of premium due under the policy. To this offer the defendant objected on the ground that the policy covered operations in the town of Mendon only, and that the Chittenden job was not covered by the policy, and that the work done on the job in Chittenden was done by independent contractors. The objection was sustained, and the offer was excluded. To this action of the court the plaintiff excepted, and this is the only exception to be considered in the ease.

[1] . If the defendant was the employer of the men who cut the pulpwood in Chittenden, and that work was a part of the business described in the defendant’s declaration in the policy, or was incident thereto, the fact that it was done in Chittenden and not in Mendon would not be a legal objection to the admission of the excluded evidence. The policy expressly provides, as stated above, that it shall apply to injuries sustained by reason of the business operations described in the defendant’s declaration in the policy, together with operations incident thereto, while conducted either at the work places therein described and defined or elsewhere.

[2] It may be assumed that the evidence respecting the arrangement under which the pulpwood was being cut tended to show that the relation of employer and employee existed between the defendant and the workmen in Chittenden, in contemplation of the term as used in the policy. But that is not determinative of the question here involved. To make the excluded evidence admissible, it must also appear that the cutting of the pulpwood was connected with and incident to the defendant’s lumbering business in Mendon. It was only injuries that might be sustained by the employees in the business operations to be there conducted, which were connected with and incidental thereto, that were insured against. The work place alone is not the test of whether injuries to the Chittenden workmen were insured against, but rather the nature of the employment in which they were engaged at that place. The defendant may well have had other lines of business, including even other lumbering operations, having no relation to, or connected with, the particular business described in the policy. The burden of establishing the necessary connection between the business in Chittenden and Mendon was upon the plaintiff. The record-fails to show that connection or that the business in Chittenden was in any way connected with the lumbering business in Mendon. Standing thus, the court did not err in excluding the offer.

Judgment affirmed.