Byrd v. Georgia Casualty Co.

Olaek, O. J. One Potts, an employee of Gibson & Cannady, was injured by the falling of a wall, and instituted an action against them and the owners of the building; the defendant insurance company denied liability for the injury, and refused to defend the suit brought by Potts, alleging that the injury was not sustained in the work which was within the terms of the policy. The policy specified that the injury insured against was any which should occur in “the erection of any building, including foundations.” The construction described was “an addition to their store building, known as the old Phipps building,” three stories in height, which was to be placed in the rear of such building attached to it, but at the time of the collapse of the wall, which resulted in the injury to Potts, the work which was being carried on was not on the addition, but in tearing down a partition wall in the old building, and not in the part covered by the contract, which specified insurance against injuries sustained in the “erection of any building,” and the policy provided that no wrecking was to be done. The agreed statement of facts sets out that the injury sustained “was in removing the brick partition wall heretofore mentioned on the first floor of the old Phipps building in order to convert two storerooms above mentioned into one storeroom. A steel pillar had been set at the end of said wall in front of said building, and a steel pillar had been set about the middle of said wall, and a steel pillar at the rear of said partition wall; steel pillars were to be installed to support said building, and to incorporate said two storerooms into one.” The work which was being done at that time was wrecking and not construction. The old Phipps building consisted of two stores, which it was the desire of the owners to convert into one by removing the brick partition wall. In order to do this they were demolishing that partition wall, and this was the cause of the collapse of the building. The agreement in the policy that no wrecking must be done was violated, and the work specified in *226 tbe terms of tbe policy, “tbe erection of frame, brick, and concrete buildings,” was not tbe work wbicb was being done at tbe time of tbe injury to Potts, nor was be engaged in sucb work. Where a policy insures against claims for damages by reason of injuries incurred by employees in certain designated operations, it cannot be extended to include claims for injuries happening to employees while engaged in work other than that specified. A policy issued to indemnify against injuries caused by certain things used in a particular business, and described in tbe application, covers only accidents occurring in sucb described work, and does not cover those occurring in work or acts wbicb may be employed in tbe process but not described in tbe application. 15 Cyc., 1037. Wollman v. Fidelity Co., 87 Mo. App., 677. In addition to seeking to recover one-balf of tbe amount paid to satisfy tbe judgment recovered by Potts against tbe original plaintiffs in this suit, the appellant Cannady is seeking to recover $500, tbe amount paid to bis attorney for bis services in connection with tbe Potts suit, and also to recover a reasonable allowance for attorney’s fees for prosecuting this action. There is no finding of fact, nor agreement, that tbe $500 paid to tbe counsel for tbe appellant was reasonable, nor is there any finding or agreement as to what bis services consisted of. In tbe absence of a finding or agreement that $500 was a reasonable fee for tbe services rendered by plaintiff’s counsel, plaintiff is not entitled to recover anything on that account. Counsel fees in this action cannot be allowed as a part of tbe costs. This action is not different from any other. Tbe defendant bad tbe legal right to contest plaintiff’s claim, and it has done so in good faith, and cannot be required to pay tbe fee referred to. Midgett v. Vann, 158 N. C., 128. "If Potts bad been engaged in tbe work wbicb tbe policy covered, namely, “tbe construction of tbe addition to tbe old Phipps building,” be would not have been injured. Tbe parties agreed that tbe defendant should not be liable for ■ injuries occurring elsewhere, and its terms cannot be enlarged or extended. He was not erecting tbe building referred to in the policy, but on tbe contrary, was engaged in wrecking a portion of tbe old building, wbicb was not within tbe terms of the-contract of indemnity. No error.