On appeal from a judgment of the Morris Common Pleas Court.
For the appellant, King & Vogt (Harold A. Price and William P. Braun, of counsel).
For the respondents, Edwards, Smith & Dawson (Edwin F. Smith, Raymond Dawson and George Echelman, of counsel).
Before Brogan, Chief Justice, and Justices Bodine and Heher.
The opinion of the court was delivered by
HEHER, J. Plaintiffs suffered injuries -- Di Vitantonio on May 5th, 1933, and Serafino on May 14th, 1933 -- by accident arising out of and in the course of their respective employments with one Salvatore Bonanni; and, in separate proceedings instituted in the Compensation Bureau, they were awarded compensation under the elective system created by chapter 95 of the laws of 1911 (Pamph. L., pp. 134, 763), as amended.
There was in force, when these accidents occurred, a policy of workmen's compensation insurance issued by the defendant corporation to Bonanni and one Daniel Padovano on May 4th, 1933; and the plaintiffs joined in this action against the insurer to enforce payment of the awards so made.
The gravamen of the complaint was that the awards were within the policy coverage, and that, in any event, defendant, by undertaking the defense of the proceedings in the bureau, was estopped from asserting non-coverage. As regards the employments, there was the bare allegation that each plaintiff sustained his injuries "in an accident arising out of and in the course of his employment; said employment being pursuant to an agreement made by" him "with Salvatore Bonanni."
The judgments of the Compensation Bureau were put in evidence; and they embody all the proofs respecting the nature of the employments and the character of the service at which plaintiffs were engaged when they sustained their injuries. Di Vitantonio was "hired by * * * Bonanni on May 4th, 1933, for grading work at Mountain Lakes, New Jersey;" and there was a finding that he was injured by an accident arising out of and in the course of that employment. Serafino "alleged that he was employed by * * * Bonnani, on or before May 14th, 1933, in performing certain mason work * * * in the borough of Mountain Lakes," and suffered an eye injury "while chipping stone with a steel hammer;" and it was found that he was "in the employ of * * * Bonanni at the time of the occurrence of his injury," and that the injury "arose in the course of his employment * * * by Bonanni."
The trial judge directed a verdict in favor of plaintiffs for their respective awards, on the ground that the accidents were covered by the contract of insurance; and the insurer appeals from the consequent judgment.
In our view, the learned trial judge misinterpreted the contract. We do not read it as covering individual operations of the named assureds, separate and distinct from their co-partnership undertakings of the character covered by the policy. The insurer thereby agreed with "this Employer, named and described as such in the Declarations forming a part hereof, as respects personal injuries sustained by employes, including death at any time resulting therefrom," to pay (a) the compensation provided by section II of the Workmen's Compensation Act, supra, and (b) to indemnify "this Employer against loss by reason of the liability imposed upon him by law for damages on account of such injuries to such of said employes as are legally employed * * *." Thus it is that, for the employer's insured character and status, reference must be had to the declarations. The employer is insured only as "named and described" in the declarations.
Item 1 of the declarations follows:
"Name of this Employer Salvatore Bonanni and Daniel Padovano, P.O. Address, 719 Wooton Street, Boonton, New Jersey.
"For the purpose of serving notice, as in the Policy provided, this Employer agrees that this address may be considered as both residence and business address of this Employer or any ...