Bass v. Occidental Life Insurance

OPINION. HANNA, J. The principal question for our consideration is based upon the alleged error in directing a verdict for the defendant upon the' theory that the insurance policy did not cover an accident, to the assured, not suffered while in the pursuit of his employment. The insurance policy, under present consideration, is not such as is generally denominated an employer’s liability policy, but is referred to, we think properly, as a blanket accident policy covering all employees of the Diamond Coal Company, who should become subscribers to a ■certain agreement, which provided for payment of an amount as premium for accident insurance under a certain policy referred to by number, and further providing for the release of the coal company from liability to the employee during the term of his employment. A careful examination of the policy discloses that 'it protects against accidents arising by external violent means during the term of employment of assured. The persons covered by the policy to be ascertained by reference to the contract between the employer and employee. This latter contract it is argued limited the class of accidents to be covered by the policy to such as arose in carrying on the work of mining coal. Appellant, on the other hand, contends that the policy itself is controlling upon this question of the risk covered and that it provides certain indemnities for accidents arising from external means, subject to the conditions and privileges contained in the policy, which, however, was not limited in the matter of. employment as was the contract between ;,the Coal Company and its employees. After careful consideration of the numerous points urged by counsel, we find ourselves inclined to the view that both contracts must be construed together in order to arrive at the intent of the parties. The insurance policy insured no one and was without consideration unless reference is had to the subsequent contract between the Diamond Coal Company and its employees. Plaintiff found it necessary to set up both instruments in order to state a cause of action, but would limit the court to the conditions set out in the policy and exclude from consideration the conditions of the contract. Can it be said that the' applicant for insurance1 in this case, is not to be bound by the express terms of the instrument signed by him, which was, in effect, his application for the insurance? We think not. It is not within the province of this, or any court, to enlarge the contract, or make a new one, between the parties. We agree with appellee that the expression of the contract, between employer and employee, ■ “during the continuance of his said employment,” meant while the employee was engaged in carrying on the work of mining: coal, which was the onfy employment referred to in said contract. Clearly the accidents in connection with such employment are the only accidents for which the employer might be held responsible, and it is plainly the intent of both instruments to relieve the employer from liability to its employees while engaged in the business of mining coal. 1 It is urged by appellant that there is no privity of contract between the parties named in the two instruments, but we consider it sufficient to say, in this connection, that it clearly appears that without the execution of either the policy or the contract there could exist no cause of action and no contract would have arisen. Each is dependent upon the other and each refers to the other. It is not a question of construction of ambiguous provisions, but a case of inter-dependent instruments which considered together constitute a contract, and reference to both being necessary to arrive at the intent of the parties. It is self-evident that the purpose of the two instruments was the insuring of certain employes against accident while engaged in a certain employment. The employer was a go-between or intermediary seeking to accomplish the purpose and thereby escape a liability otherwise resting upon it. The instruments were not executed at the same time, but did deal with the same subject matter and each referred to the other. They were a part of one transaction, otherwise, as pointed out, there could be no contract and no cause of action, and must, therefore, be read together and each construed with reference to the other. It has been held that: “When several instruments are executed at the same time in relation to the same subject matter and to accomplish a common purpose, and the execution thereof is known to every party to either instrument, they should be construed as one contract, though the parties to each instrument are not the same.” MacDonald vs. Wolff, 40 Mo. App. 302. See also, Houck vs. Frisbee, 66 Mo. App. 16. The same principle was applied by the Supreme Court of Iowa in a case where the instruments were executed at different times. Logan vs. Tibbott, 4 Greene (Ia.), 389. We are of the opinion that the correct rule is, as set forth in 2 Page on Contracts, Sec. 1116: “Even if two writings are executed on different dates ■ and between different parties, they may from their subject matter be so connected that even without express reference the, later contract is to be so construed as to be read in connection with the earlier.” Our- conclusion upon this question makes it unnecessary to pass upon the other questions presented, and for the reasons given, the judgment of the District Court is affirmed, and, it is so ordered.