Gise v. Fidelity & Casualty Co. of New York

This action was instituted by the plaintiff, an employer, to recover of the defendant, his insurance carrier, the sum of $521 expended by him in resisting a claim made against defendant and himself, by an injured employee, upon the refusal of the defendant to defend plaintiff’s interests in a proceeding before the Industrial Accident Commission. In addition to a general and specific denial, the defendant interposed a counterclaim for the sum of $1,590.21, the amount of the award made by the commission and paid to the injured employee by the defendant. The court denied relief to the plaintiff, and refused judgment to the defendant on its counterclaim, leaving the parties in the same situation as they were before the action was commenced. Thereupon both the plaintiff and the defendant perfected appeals. The matter is presented to this court by stipulation upon one transcript and one set of briefs. Since both the parties are appellants and likewise respondents, we shall, for the sake of clarity, refer to them by their original designation as plaintiff and defendant. Plaintiff claims that the lower court erred in refusing to give judgment in his favor for the sum expended in defending himself before the Industrial Accident Commission.

Both parties base their claim upon the terms of a California workmen’s compensation policy, issued by the defendant and designed to cover the workmen employed by the plaintiff in a butcher-shop operated by him. The policy contains the usual stipulations as to the liability and duty of the insurance carrier. The defendant agrees, among other things, to defend, in the name and on behalf of the plaintiff, any suits or other proceedings instituted against him under the provisions of the compensation law, and covered by the insurance agreement. Another provision in the policy, styled “Condition M,” provides that the plaintiff, by his acceptance, declared certain statements, indorsed thereon and numbered 1 to 17, inclusive, to be true. One of these declarations (item 14) is to the effect that no person was or would be employed by the assured in violation of law as to age. It is further stipulated in said condition that the policy is issued in consideration of these statements, and the provisions of the policy as respects its premium and the payment thereof. The same clause provides, however, that “Nothing in this condition (M) and no default on the part of the assured with respect to any of the provisions or conditions of the policy, shall in any way affect the right of any employee, or his dependents, to recover from the company the compensation provided for by law and intended to be insured hereunder.”

In plain disregard of the agreement on his part not to employ any person in violation of the law as to age, the plaintiff employed Wesley Clark, a minor, not yet fifteen years of age, who, while engaged in operating a meat-grinding machine in plaintiff’s shop, suffered an injury which resulted in the loss of the fingers of one hand. Thereafter the injured employee filed an application for compensation before the Industrial Accident Commission against both the plaintiff Bise and the defendant Insurance Company. The defendant refused to defend the proceedings before the commission in behalf of the plaintiff, upon the ground that the plaintiff had breached the policy of insurance by employing Wesley Clark in violation of the law

The trial court found, and the finding is amply supported by the evidence, that by reason of the employment of Wesley Clark by the plaintiff, and because of the boy’s age, the manner and place of his employment, and the nature of his work, coupled with the failure to obtain for him from the superintendent of schools a permit to work, the plaintiff breached the contract or policy of insurance. [1] Conse

[2] “ ‘A statement in a policy, which imports that it is intended to do or not to do a thing which materially affects the risk, is a warranty that such act or omission shall take place.’ (Civ. Code, sec. 2608.) Under this language it would seem that the terms of item 14 amounted clearly to a warranty. The item imported that plaintiff intended not to do a thing; that is, employ a person in violation of law as to age, and the thing he intended not to do, if done, would materially affect the risk, for immaturity of years is accompanied by immaturity of judgment, and lack of judgment in an employee will always affect the risks of his employment and, therefore, the risk insured against by such a policy as the one now in question. It is to be remembered, also, that, according to the provisions of condition M, the policy was issued in consideration of plaintiff’s declaration of the truth of the statements made in items one to seventeen. In addition to the section of the code the terms of which are above set forth, the fact that item 14 carried a warranty into the policy is established by several decided cases (McKenzie v. Scottish, U. & N. Ins. Co., 112 Cal. 548 [ 44 Pac. 922 ]; Porter v. General Acc. Assur. Corp., 30 Cal. App. 198 [ 157 Pac. 825 ]), although the decision last cited is based upon a section of the Civil Code (2607) concerning statements of existing facts, as distinguished from statements of things to be done or omitted. Also, it is plain from cases cited by plaintiff himself that, after the illegal employment of Clark, and but for the exception contained in condition M, the policy would have been ineffective with respect to any considerations arising from the injury to Clark, including, of course, any claim attempted to be made under its terms by him: this because of the inclusion of item 14 in the instrument. (Louis F. Kleeman Co. v. New Amsterdam Casualty Co., 177 Mo. App. 397 [ 164 S. W. 167 ]; Mason-Henry Press v. Aetna L. Ins. Co., 211 N. Y. 489 [ 105 N. E. 826 ]; Maryland Casualty Co. v. Industrial Acc. Com., 179 Cal. 716 [ 178 Pac. 858 ].) We have to consider, therefore, noth

[3] "When the injured employee made his demand for compensation, the defendant promptly repudiated any liability under the policy, and refused to defend plaintiff in the proceeding instituted before the Industrial Accident Commission. It in no way controlled or sought to direct his action, but confined its efforts solely to a protection of its interests. It was not thereby estopped to deny any liability for the expenses incurred by plaintiff in making his affirmative defense before the commission. (Mt. Vernon etc. Co. v. Frankfort etc. Ins. Co., 111 Md. 561 [ 134 Am. St. Rep. 636 , 75 Atl. 105 ]; Mason-Henry Press v. Aetna L. Ins. Co., 211 N. Y. 489 [ 105 N. E. 826 ]; Sargent Mfg. Co. v. Travelers Ins. Co., 165 Mich. 87 [ 34 L. R. A. (N. S.) 491 , 130 N. W. 211 ].)

While the foregoing authorities, and those cited in the opinion of the district court of appeal, clearly deny to the employer the right to recover from the insurance carrier in cases like this, and that is so, even though the injury was not the proximate result of the illegal employment (Goodwillie v. London Guarantee etc. Co., 108 Wis. 207 [ 84 N. W. 164 ]), we have been cited to, and have found, no case involving the question presented by the counter action, of the defendant, to recover the amount it paid to the injured employee under the award of the Industrial Accident Commission. In none of those cases was consideration given to the effect of a provision, such as that contained in condition M of the policy here, on the reciprocal rights of the parties under such circumstances. The trial court decided that as, by reason of the terms and provisions of such condition, the injured boy, although employed in violation of the law as to age, was covered and protected by the policy, the defendant was legally held and obligated • to pay the

[4] It seems only reasonable to hold, and in the absence of authority to the contrary we are of the opinion, that

The judgment that the plaintiff recover nothing from the defendant is affirmed. The judgment that the defendant recover nothing from the plaintiff is reversed.

Richards, J., pro tem., Sloane, J., Wilbur, J., Lawlor, J., Shurtleff, J., and Shaw, C. J., concurred.

On March 27, 1922, the court vacated the foregoing judgment and amended the foregoing opinion as follows:

It is ordered that the judgment herein entered be, vacated and that the opinion by Mr. Justice Waste rendered herein on March 17, 1922, be amended by adding thereto the following:

It is conceded that the defendant paid the amount of the liability covered by the policy as aforesaid and on account of the injury to said employee, Wesley Clark, the aforesaid sum of $1,590.21. There is no dispute about the fact. Under these circumstances there is no necessity for a new trial. The rights of the parties can be fully adjusted by directing a judgment in accordance with our conclusions aforesaid.

The judgment is reversed and the ease is remanded, with directions to the lower court upon the going down of the remittitur to forthwith enter a judgment that the plaintiff

Shaw, C. J., Richards, J., pro tem.., Sloane, J., Wilbur, J., Waste, J., Lawlor, J., and Shurtleff, J., concurred.