Dives v. Fidelity & Casualty Co. of New York

Citations

• 206 Pa. 199
• 55 A. 950
• 1903 Pa. LEXIS 675

Syllabus

<p>Insurance — Accident insurance — Employer's insurance — Application— Schedule.</p> <p>An employer’s accident policy contained this provision : “This policy does not cover loss from liability for injuries as aforesaid to, or caused by, any person unless his wages are included in the estimated wages hereinafter set forth and he is on duty at the time of the accident in an occupation hereinafter described at the place or places mentioned in the schedule.” The application for the policy contained the following : “ The estimated pay roll does not include the wages paid by subcontractors.” Before the application was signed the word “ not” in the item was stricken out, and the answer written was “yes.” The schedule attached to the policy contained the exact words of this item, except that in the schedule the word “not” was not stricken out. The answer “ yes” was written after the item in the schedule the same as after the item in the application. Held, that the wages of an employee of a subcontractor were included in the estimated wages, and that if the insured was compelled to pay damages for injuries to such an employee, he could recover on the policy.</p> <p>Insurance — Accident insurance — Pleading.</p> <p>In an action on two contractors’ liability policies of accident insurance, where the plaintiffs declare in separate counts upon each of the two policies, under the one claiming that the person injured was their .employee, and under the other that he was not, and the defendant pleads without objection to the declaration, the court commits no error in refusing defendant’s motion made at the beginning of the trial “that the plaintiffs be directed to elect on which of the two counts of the declaration they would proceed.”</p>