Opinion
No. 41813.
November 12, 1951. Rehearing Denied December 10, 1951.
APPEAL FROM THE ST. LOUIS COUNTY CIRCUIT COURT, JOHN A. WITTHAUS, J.
Stamm, Millar, Neuhoff Stamm, David L. Millar and J. D. Leritz, all of St. Louis, for appellant.
Evans Dixon, Wm. W. Evans and John F. Evans, all of St. Louis, for respondent.
This case came to the writer on reassignment. Without quotation marks, portions of the previously prepared opinion are hereinafter used. Orval J. Cloughly (plaintiff) appealed from an adverse judgment entered at the close of plaintiff's evidence upon a motion by the defendant Equity Mutual Insurance Company, a corporation, of Kansas City, Missouri, for a directed verdict, in an action wherein plaintiff sought a judgment of $12,845.47, principal amount against defendant. The point at issue here is whether the Standard Workmen's Compensation and Employer's Liability Policy issued by defendant and providing indemnity against loss by Mr. Cloughly on account of injuries to the latter's employees engaged in "farm" operations, or "operations necessary, incident or appurtenant thereto, or connected therewith" anywhere in the State of Missouri, covered Mr. Cloughly's employee who was injured while engaged in removing lumber and material from a building in the City of St. Louis, Missouri, for the purpose of taking such lumber and material so salvaged from said building to Mr. Cloughly's farm in Pike County to be used thereon.
Mr. Cloughly was a resident of St. Louis, and engaged generally in the wholesale drug business, being Vice-President and General Manager of the St. Louis Wholesale Drug Company, a corporation of St. Louis, Missouri. In addition thereto, he and Anne Cloughly, his wife, owned two adjoining farms of about 1250 acres operated as a unit, with improvements thereon, in the vicinity of Bowling Green, Pike County, Missouri.
Mr. Cloughly was issued an insurance policy against the hazard of loss by injury to an employee in work upon, or incident, appurtenant or connected with his farm operations. The farm operations (as such) were not under the Missouri Workmen's Compensation Laws. RSMo 1949, § 287.090, 287.050, 287.070. Accordingly, Mr. Cloughly consulted his insurance broker, a Mr. Manlin; and in order to take out the compensation insurance he and Mrs. Cloughly filed a notice of their election to accept the provision of the Workmen's Compensation Act. They also posted on the farm premises the notice of their acceptance of the Act, a notice furnished by the Workmen's Compensation Commission. Sec. 287.090, supra. No such notices were ever posted at 305 South Broadway, St. Louis, Missouri, hereinafter mentioned. This combination policy was issued.
Under the policy, so far as material here, the insurance company agreed "1. (a)" to pay all sums due any person under the Missouri Workmen's Compensation law; and under "1. (b) to indemnify this Employer against loss (not covered by Workmen's Compensation Law) 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 wherever such injuries may be sustained * * *".
The policy also recited: "6. This agreement shall apply to such injuries so sustained by reason of the business operation described in said Declarations which, for the purpose of this insurance, shall include all operations necessary, incident or appurtenant thereto, or connected therewith, whether such operations are conducted at the work places defined and described in said Declarations or elsewhere in connection with, or in relation to, such work places."
In item 1 of the "Declarations" in the policy, O. J. Cloughly and Anne Cloughly are named as the "Employer." Item 3 of the "Declarations" gives the location of the buildings, premises, or other work places of the "Employer" as "Bowling Green, Pike County, Missouri, and elsewhere in the State of Missouri insofar as the business described in the Classification of Operations is concerned." The divisions of the operations were stated as: "1 All industrial operations upon the premises. 2 All office forces. 3 All repairs or alterations to premises. 4 Specially rated operations on the premises. 5 Operations not on the premises." Under "Classification of Operations" appears, so far as material here, the following: "Inservants. Farms — all employees other than inservants".
At the time he took out the policy, April 19, 1945, Mr. Cloughly had contracted to purchase a five-story commercial building at 305 South Broadway, St. Louis, Missouri. On September 6, 1945, he received a warranty deed transferring that property to himself individually. On October 25, 1945, he leased the building to the United States Rubber Company, a corporation, and covenanted to make specific repairs to the building. He contracted with Robert R. Wright to make the repairs for $10,815.76.
Lumber and other building materials were very difficult to procure. On the first floor of 305 South Broadway there were some partitions containing lumber of various dimensions; there were also some toilet and plumbing facilities and other material there which were no longer needed in that building. Mr. Cloughly decided to salvage what he could of the lumber, and other material, in the St. Louis building for needed improvements and repairs on the farms in Pike County. His farm employees who lived on the farm, the "farm boys", first came down to St. Louis and took some of the lumber out of the building and trucked it in the farm truck to the farms. C.J. Schrage was a truck driver for the St. Louis Wholesale Drug Company. At times Schrage also did farm work for Mr. Cloughly, on occasions helping thresh and haul soy beans; and, at the Drug Company's garage, Schrage had built some gates for the farms. When Schrage worked on the farms he returned each evening to his home in St. Louis. The farm boys were needed at the farms to harvest the bean crop. Mr. Cloughly authorized Schrage, who had been employed "to take the farm boys place" in taking out the lumber and other material and hauling it to the farm, and who was thereafter in charge of that work, and had been also instructed to construct certain buildings on the farm, to employ some one to help him. On November 21, 1945 Schrage hired one Frank Swantner, at $5 a day to help do that work for Cloughly. Swantner, who had always lived in St. Louis, had been a chauffeur, but was temporarily out of work. Schrage informed Swantner the employment was temporary; that he (Swantner) was to help "take that stuff out of the building," and also, if Swantner wanted to, the latter could help Schrage fix the gates and do other work on the farm, and Swantner agreed to do so. On Sunday, November 25, two loads of material salvaged from the building were taken to the farms in two of the Drug Company's trucks; one truck being driven by Schrage, with Swantner accompanying him, and the other truck was driven by an employee of the Drug Company. Swantner worked that day, went to the farm in Pike County with Schrage, and there assisted in unloading the truckload of material.
Mr. Wright was making the repairs to the St. Louis building and neither Schrage nor Swantner did any of the work which Wright had contracted to do. Schrage and Swantner did nothing other than "salvaging materials for the farm". Cloughly testified that Swantner was employed "to take lumber from the building for the farm and deliver it to the farm, and later on he and Schrage were to build a cow shed for me * * * to get the partitions (lumber) down and haul them to the farm * * * it was definitely for farm work, taking out the lumber for the farm from the building." While at Mr. Cloughly's building in St. Louis on Monday, December 3, 1945, and while helping Schrage remove a pulley from a shaft which was later used on the farm, a piece of steel struck Swantner's left eye. The injury resulted in the removal of his eye.
The defendant insurance company declined to accept any liability for the injury to Swantner's eye. Swantner sued Cloughly for damages for the eye injury. Defendant refused to defend that action. Swantner recovered a judgment against Cloughly of $21,591.10. On June 10, 1948 under stipulation, the judgment was set aside and a new judgment entered for $10,162.35, plaintiff Swantner acknowledging satisfaction thereof. Additional necessary payments made by Mr. Cloughly brought his total expenditures because of the suit by Swantner to $12,845.47. Then followed the instant action by Mr. Cloughly against the insurance company upon the policy.
The merits of the controversy between Cloughly and the insurance company are not before us upon this appeal. The sole questions now for our determination are: Could the jury have reasonably inferred from this evidence that the purpose and intent of Swantner's work was to take the material from the building and truck it to the farm that such material could be used thereon for farm purposes? And, if the above could be inferred, could the jury also infer that such work was incident or appurtenant to or connected with the farm operations? If those questions must be affirmatively answered, the instant judgment must be reversed and the cause remanded to permit a jury to consider the evidence under proper instructions. In considering whether plaintiff's evidence made a case for the jury we must consider all the evidence in the light most favorable to plaintiff, and give him all the reasonable favorable inferences which may be drawn therefrom. Rieger v. London Guarantee Accident Co., 202 Mo.App. 184, 215 S.W. 920, 922(1); McKay v. Delico Meat Products Co., 351 Mo. 876, 174 S.W.2d 149, 151 (1, 10); Wright v. Osborn, 356 Mo. 382, 201 S.W.2d 935.
The policy is to be construed as a whole and (if it may be) to effectuate the coverage intended. Schmidt v. Utilities Ins. Co., 353 Mo. 213, 182 S.W.2d 181, 183(2), 154 A.L.R. 1088; State ex rel. Mills Lumber Company v. Trimble, 327 Mo. 899, 39 S.W.2d 355, 358(4); Rieger v. London Guarantee Accident Co., supra; State ex rel. Ocean Accident Guarantee Corp. v. Hostetter, 341 Mo. 488, 108 S.W.2d 17, 19(1).
Without restating all the facts above noted, it is our conclusion that, from the evidence before them, the jury could reasonably have inferred and found that the intent and purpose of plaintiff in having Swantner do that work was that certain material therein be removed from the building and trucked to the farm solely for use on the farm for farm purposes; and, the jury could further have inferred and found that the work Swantner was doing was no part of the work which Wright had contracted to do to prepare Cloughly's building for the tenancy of the Rubber Company.
In the light of the above we have remaining before us but the following question: From the evidence could the jury reasonably have inferred and found that Swantner's work was incident to, appurtenant to or connected with Cloughly's farm operations?
Contending that Swantner was engaged in work directly connected with and incidental to the operation of plaintiff's farms at the time he was injured, plaintiff cites cases to the following effect:
In Welch v. Reiling, 170 Tenn. 698, 99 S.W.2d 216, the painting of the roof of a house was held within the provisions of the workmen's compensation insurance policy issued to a general contractor engaged in building and repairing houses where the "classification of operations" specified carpentry, masonry, and excavation, without naming painting. The painting of the roof by the general contractor was held to be necessary, incident, or appurtenant to the operation of building or repairing.
In Maryland Casualty Co. v. W. C. Robertson Co., Tex.Civ.App., 194 S.W. 1140, 1144(4, 5), an employee while painting the corrugated iron roof of a gin, painted every two or three years to preserve it, was held to be within the coverage of a policy covering employees "engaged in occupations connected with the business of cotton ginning, pressing, and bookkeeping, including ordinary repairs * * *."
Kinston Cotton Mills v. Liability Assur. Corp., 161 N.C. 562, 77 S.W. 682, 683(3), held it was a question for the jury whether a mill employee digging sand from a hole on the employer's premises for use in the construction of a brick chimney to replace two iron smoke stacks, was in connection with an incidental or ordinary alteration to the maintenance of the plant in good condition, which was within the policy coverage, or was a structural alteration, which was excluded from the coverage.
Coleman v. Bartholomew, 175 App.Div. 122, 161 N.Y.S. 560, 561(2), held a farm laborer, injured while temporarily employed to repair the roof on defendant's barn, was engaged in work incidental to the operation of the farm and a "farm laborer," and was thus excluded from the benefits of the Workmen's Compensation Law, McK. Consol.Laws, c. 67. To like effect are Culpepper v. White, 52 Ga. App. 740, 184 S.E. 349, where the employee was injured while digging a ditch on his employer's farm to make the land more suitable for cultivation; and Powell v. Industrial Comm. of Wis., 193 Wis. 38, 213 N.W. 651, where a farm laborer was injured while sawing wood on the farm of another for use as firewood in the house thereon in consideration of the occupant agreeing to assist the employer in bailing hay.
Klein v. McCleary, 154 Minn. 498, 192 N.W. 106, 107, is cited to the point that Swantner's calling or usual occupation is not the test, but rather the nature and character and purpose of his work. The case mentions that a carpenter may become a farm laborer for the time being and a farm laborer may become a carpenter for the time being. Consult Peterson v. Farmers' State Bank, 180 Minn. 40, 230 N.W. 124, 125. Plemmons v. Pevely Dairy Co., Mo.App., 233 S.W.2d 426, 431, quotes with approval Ginn v. Forest Nursery Co., 165 Tenn. 9, 52 S.W.2d 141, stating: "`Whether a laborer is or is not a farm employee is determined from the character of the work he is required to perform.'" (Emphasis ours.)
The foregoing are illustrative of the cases cited and relied on by plaintiff. Other cases are: Sullivan v. Home of Old Israel, 245 App.Div. 877, 282 N.Y.S. 328; Finding v. Ocean Accident Guarantee Corp., 65 Colo. 332, 177 P. 142, 143; Stahl v. Patrick, 206 Minn. 413, 288 N.W. 854; Bates v. Shaffer, 216 Mich. 689, 185 N.W. 779; McAllister v. Cobb, 237 App.Div. 674, 263 N.Y.S. 349.
Defendant, contending Swantner was not a farm employee, and that his work was neither necessary, incident or appurtenant to, nor connected with plaintiff's farm operations, cites such cases as Di Bari v. Reilly, 299 N.Y. 220, 86 N.E.2d 571; Tuscaloosa Veneer Co. v. American Mutual Liability Ins. Co., 240 Ala. 444, 199 So. 868; Patterson v. Courtenay Mfg. Co., 196 S.C. 515, 14 S.E.2d 16; Neubeck v. Doscher, 204 App.Div. 617, 199 N.Y.S. 203; Rust Lumber Co. v. General Accident Fire Life Assur. Corp. Ltd., 134 La. 309, 64 So. 122. All of the above cases cited by both parties, and others not cited, have been carefully examined. The two seemingly contrary lines of authority as represented by the above cases from other jurisdictions seem to be in hopeless conflict and limitations upon space forbids any attempt here to analyze all of them or to reconcile them. None of the briefs cite us to any Missouri case which either party contends is authoritative upon the instant facts.
In contending that Swantner was not engaged in farm operations, or "operations necessary, incident or appurtenant thereto or connected therewith", defendant argues that (1) coverage was never contemplated for work performed in St. Louis by a chauffeur resident in that city, and (2) the relationship between the work done by Swantner and the business described in the policy lacked any direct connection and was too remote.
It may be first observed that the test which must be applied is, could a jury reasonably infer that Swantner was reasonably engaged in the general business covered by the policy, or, was his work incident to or connected with the operation of plaintiff's farm. In applying that test it must be kept in mind that under this policy it is the character and purpose of the work Swantner performed, and neither the place of its performance nor the previous calling of the performer, that is determinative.
There was but one purpose to the work that Schrage and Swantner were doing. That purpose centered in plaintiff's farm operations and determined the character of the work. Lumber and building material were then not merely scarce, it was substantially impossible to secure them. That the lumber and other needed material might be used on the farm, plaintiff sought to salvage such material out of the St. Louis building. It is commonplace to use salvaged material on a farm. Cloughly had his employees who lived on the farm come to St. Louis. Those employees there salvaged from the building and trucked to the farm certain of the material taken out of the building. Those employees who lived on the farm were thereafter needed to harvest the bean crop on the farm. That other material which could be salvaged might be taken out of the building and trucked to the farm, plaintiff employed Schrage to continue that work. Schrage was authorized to employ Swantner to help him in that work and those two continued to salvage the material for the farm and to truck it there. That was done by them for just one purpose, the improvement and continued operation of the farms by the use of such salvaged material on the farm.
It may be conceded as of course that Swantner was neither plowing a furrow nor milking a cow when he was injured. But his work when injured was clearly an "incident" of farm operation and directly "connected therewith". A great variety of work goes into farm operations, other than plowing, planting, harvesting and milking. It is also necessary to assemble material for construction, and for the repair of needed buildings.
Under the circumstances a jury could reasonably infer that the procuring of material for use upon the farms and to be used in the operation of the farms was "incident" to the farm operations, and was directly "connected therewith". McKay v. Delico Meat Products Co., supra; March v. Bernardin, 229 Mo.App. 246, 76 S.W.2d 706; General Finance Co. v. Pennsylvania T. F. Mutual Cas. Ins. Co., 348 Pa. 358, 35 A.2d 409; Utah Copper Co. v. Industrial Commission, 57 Utah 118, 193 P. 24, 13 A.L.R. 1367; Holmen Creamery Ass'n v. Industrial Commission, 167 Wis. 470, 167 N.W. 808.
Within the meaning of the above quoted paragraph "6" of the insurance policy, work or an "operation" which is "incident or appurtenant * * * or connected" is work which depends on, is related and pertains to and is subordinate to the major coverage of farm operations. Finley v. St. Louis Smelting Refining Co., Mo.App., 227 S.W.2d 747, 751(2), and cases collated 20 Words and Phrases, p. 419. As used in this policy that which is an incident of, or incidental to, another thing has direct connection and relation with such other thing. Such connection, in law, may not be remote or fanciful, but must be factual and real. For instance, if plaintiff in the city of St. Louis had operated a factory manufacturing farm machinery only, such manufacture would not be "incident, or appurtenant * * * or connected" with the operation of plaintiff's farm, and, an injury in such a St. Louis factory would not be covered under the instant policy.
But, if one of plaintiff's "farm boys" resident in his Pike County farm had sustained an injury in the St. Louis building while he was there removing for plaintiff material to be taken to and used upon plaintiff's farm, it could not be seriously contended that such injury would not have been covered by this policy. And likewise, Swantner, while working in the St. Louis building salvaging material for the sole purpose of removing it to plaintiff's farm for use thereon in plaintiff's farm operations was doing work directly connected with and incident to plaintiff's farm operations. Swantner's work depended upon plaintiff's farm operations, for, if plaintiff had not owned and operated the farm, it follows that he would not have had Swantner employed in salvaging material to use upon the farm. If the building plaintiff had purchased in St. Louis had had therein a thousand bushels of seed corn (which plaintiff desired to plant upon his farm), and plaintiff had employed Swantner to go to the building, carry the corn to a truck and truck it to his Pike County farm, it could not be seriously contended that, if injured in the building while so employed, such work was not incident to and connected with plaintiff's farm operations. In Coleman v. Bartholomew, supra, [175 App.Div. 122, 161 N.Y.S. 561.] it was said: "All the multifarious work of operating a farm must be done by somebody; and who is to do it except the farm laborer? It is, of course, necessary to keep the farm machinery in repair — the reapers, mowers, corn harvesters, sulky plows, wagons, harnesses, etc. It is just as necessary to keep the farm buildings in repair, and occasionally to make small additions to them. This is a part of the routine work of the farm laborer; just as much so as milking the cows, cleaning off the horses, building fences, putting a new point on a plow, doctoring a sick horse, butchering the hogs, greasing the wagons, assisting the threshers, driving the team to market, and innumerable other familiar duties."
The defendant insurance company wrote the contract and policy of insurance. It chose the words therein, and the words, "all operations necessary, incident or appurtenant thereto, or connected therewith" are its own language. If defendant had desired to limit its coverage and liability to the tilling of the soil, the harvesting, the milking, or had desired to express any limitation whatever, it could easily have so written its contract. If it so desired, such desire and intention to limit its coverage should have been made manifest in the contract. State ex rel. Mills Lumber Company v. Trimble, supra, Reiger v. London Guarantee Accident Co., supra. We cannot, by construction, rewrite the insurance contract and strike therefrom the words last above quoted.
The judgment appealed from must be reversed and the cause remanded. It is so ordered.
HYDE, HOLLINGSWORTH, DALTON, LEEDY, TIPTON, JJ., concur.
ELLISON, C. J., dissents.