Soukup v. Employers' Liability Assur. Corp. , 341 Mo. 614 ( 1937 )

I am unable to agree with the majority opinion and deem it expedient to express my views on this case.

[8] Do these policies cover an occupational disease contracted by an employee of the defendant? "The construction of insurance contracts are governed by the same general rules as are applied to the construction of other written contracts. `The function of the courts is to construe them, not to make them.'" [Henderson v. Mass, Bonding Ins. Co., 337 Mo. 1, 84 S.W.2d 922, l.c. 924.] Where possible, it is our duty to give every clause of the policy some meaning. Clause Seven is as follows:

[9] "This agreement shall apply only to such injuries so sustained by reason of accidents occuring during the Policy Period, limited and defined as such in Item 2 of said Declarations."

This clause, standing alone, clearly limits the liability of the appellant to injuries caused by accident, and does not cover occupational diseases. [10] The majority opinion agrees with the contention of the respondent that the insuring clause is limited to Clause One (a), which deals with liability under the Workmen's Compensation Act, and One (b), which indemnifies the employer against loss by reason of the liability imposed upon him by law for damages on account of such injuries to such of said employees as are legally employed, and as Clause Seven intends to limit the prior coverage, it should not be permitted because the same appears in an after-clause which is repugnant to the general insuring clause. There is no doubt that this is a rule of law in this State. [Jackson v. Order of the United Commercial Travelers, 89 S.W.2d 536; Caine v. Physicians' Indemnity Co., 45 S.W.2d 904.]

[11] To my mind, Clause Seven is as much a part of the insuring clause as Clauses One (a) and One (b). A reading of the policy shows that it clearly and unambiguously states that the Employers' Liability Assurance Corporation "does hereby agree with the employer . . . as respects personal injuries sustained by employees, including death at any time resulting therefrom as follows:"

One (a) — Workmen's Compensation liability.

One (b) — Damages imposed by law on account of personal injuries to employee.

Two — Inspection of the work places.

Three — Appellant agrees to defend any suit brought against the employer (insured).

Four — Appellant will pay all costs taxed in any legal proceeding.

Five — Employees covered.

Six — Limits the coverage to such injuries as may be sustained by business operators described in the declaration made by the employer for the purpose of obtaining the policy.

Seven — Limits the coverage to such personal injuries caused by an accident.

I think all seven of these paragraphs constitute the insuring agreement. If this is not true, then the appellant would not be obligated to defend any action brought against the insured or pay the cost of the lawsuit.

[12] The majority opinion states that there is an ambiguity between Clause One (b) and Clause Seven, therefore, the policy should be construed strictly against the insurer and liberally in favor of the insured. It is a well-established rule of law that when the meaning of a policy is doubtful or susceptible to different constructions, the policy shall be strictly construed against the insurer and liberally in favor of the insured. [Henderson v. Mass. Bonding Co., supra; Bank v. American Bonding Co., 89 S.W.2d 554; Matthews v. Modern Woodmen, 236 Mo. 326, 139 S.W. 151.]

"In the construction of the policy, the rules to be followed are well settled. The policy is a contract. Plain and unambiguous language must be given its plain meaning. The contract should beconstrued as a whole; but, in so far as open to different constructions, that most favorable to the insured must be adopted. [State ex rel. Security Mutual Life Ins. Co. v. Allen,305 Mo. 607, 614 et seq., 267 S.W. 379, 381, 382.] However, as said in 14 Ruling Case Law, section 103, page 931, the rule`does not authorize a perversion of language, or the exercise ofinventive powers for the purpose of creating an ambiguity whennone evists. . . ." [Wendorff v. Mo. State Life Ins. Co.,318 Mo. 363, 1 S.W.2d 99, l.c. 101.] (Italics ours.)

Taking the insuring clause as a whole, I see no ambiguity between Clause Seven and Clause One. Clause One (a) deals with an injury to an employee that would entitle him to come under the Workmen's Compensation Act. Certainly, the employee would not be entitled to the benefits of the Workmen's Compensation Act if he were not injured by an accident. Therefore, there could be no ambiguity between Clause Seven and Clause One (a); nor do I see any ambiguity between Clause Seven and Clause One (b).

[13] The majority opinion creates an ambiguity by giving the word "accident" two different meanings. I agree that this word has many different definitions, but when it is used only once it must have been used with only one meaning in mind, and that meaning should be applied to both Clause One (a) and Clause One (b).

The word "accident," when used in connection with Clause One (a), must mean what the majority opinion denominates as the common-law definition, which is the same as the statutory definition. The word "accident" is defined in the statutes as "an unexpected or unforeseen event happening suddenly and violently, with or without human fault and producing at the same time objective symptoms of an injury." [R.S. 1929, sec. 3305, subdiv. (b).]

First, it is necessary to use this definition to determine if the injury that the insured's employee received is one under the Workmen's Compensation Act, or is one under common law or statutory negligence; that is, to determine if the personal injury that the employee received comes under One (a) or One (b) of these policies. If the appellant can be "hooked" under the statutory definition, then the majority opinion would use that definition and say liability was under Clause One (a); however, if that definition is not broad enough to create liability under the new policy, then a broader meaning of the word would be used.

I think the word "accident" should be given only one meaning; in so doing, the policy is free from ambiguity. To use the definition of the majority opinion creates an ambiguity where none exists.

I, therefore, think that the judgment of the circuit court should be reversed.