Opinion
Argued October 10, 1932
Decided November 22, 1932
Appeal from the Supreme Court, Appellate Division, Third Department.
Charles J. O'Brien and Eugene Raines for appellant.
Harlan W. Rippey and Milton L. Baier for Guardian Casualty Company, respondent.
These are claims for death benefits arising out of the deaths of William R. Kretchmer and Henry Rowitz, who were killed, while engaged in work for their employer, Monroe Union Oil Company, Inc., through an accident concededly arising out of and in the course of their employment. The awards made run against two insurers, the Guardian Casualty Company, Inc., and the London Guarantee Accident Company, Ltd. The only question presented is whether the policy of the latter company covered the risks.
Monroe Union Oil Company, Inc., the employer, did an extensive business, in selling oil and gasoline, at 22 Wright street in Rochester, N.Y. On the day of the accident it held a policy in the Guardian Casualty Company, indemnifying it against loss by reason of any liability imposed upon it by law for injuries which might be sustained by its employees. The policy provided: "This agreement shall apply to such injuries so sustained by reason of the business operations 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." The Declarations contained this: "Locations of all factories, shops, yards, buildings, premises or other work places of this employer, by town or city, with street and number. 22 Wright St. and 19 Spring St., Rochester, N.Y., and Buell Ave., Town of Gates." Concededly, this policy covered the losses in question, for Kretchmer and Rowitz met their deaths while engaged in operations conducted in connection with the declared work place at 22 Wright street, Rochester, N Y
Prior to the accident, another oil company, known as Union Oil Works, did an extensive business in the sale of oil and gasoline in the city of Rochester, N.Y., having its principal work place at 171 East avenue in that city. This company had a policy in the London Guarantee and Accident Company, Ltd., the appellant, insuring it against loss through liability for injuries to workmen imposed by the Workmen's Compensation Law (Cons. Laws, ch. 67). The policy provided that its coverage would include all injuries received through operations conducted at the work places specified in the Declarations, or in connection therewith. The work places specified were those located at 171 East avenue, Rochester, N Y
On April 9, 1929, about one month before the accident, the Monroe Union Oil Company, Inc., purchased all the places of business and assets of the Union Oil Works. The latter company then assigned to the former all its interest in the policy held by it in the London Guarantee and Accident Company, Ltd., the appellant. The assignment read as follows: "For value received the interest of Union Oil Works in policy No. U.S. 136000 is hereby assigned as of 12:01 A.M. of the 10th day of April, 1929, to Monroe-Union Oil Co., Inc., of 22 Wright Street, Rochester, New York, subject to the consent of the London Guarantee Accident Co., Ltd., of London, England." The consent obtained was in the following terms: "The London Guarantee Accident Co., Ltd., hereby consents that the interest of Union Oil Works in the said policy No. U.S. 136000 be assigned as of 12:01 A.M. of the date of the assignment to Monroe-Union Oil Co., Inc., subject to the terms and conditions of the said policy."
Self-evidently, a policy which indemnifies against lose through operations conducted at 171 East avenue, Rochester, N.Y., or in connection therewith, does not insure against loss through operations conducted at 22 Wright street, Rochester, N.Y., or in connection therewith. To create such coverage the terms of the policy must have been modified by agreement between insurer and insured. Certainly, such an agreement is not found where the insured merely assigns its interest in the policy, and the insurer does nought else than to consent thereto. Especially must this be true, where, as here, the insurer's consent is expressly made "subject to the terms and conditions of the said policy." The terms of the policy in question remained identically the same after the assignment as before. As they did not previously provide coverage for injuries received through operations at 22 Wright street, or in connection therewith, they did not subsequently so provide; therefore, they did not cover the accidental injuries and deaths for which these awards were made.
The orders of the Appellate Division and the awards of the State Industrial Board should be modified by dismissing the claim against the London Guarantee and Accident Company, Ltd., and providing for an award against the Guardian Casualty Company, Inc., for the total death benefits recoverable, and as so modified affirmed, with costs in all the courts in favor of the former against the latter.
POUND, Ch. J., CRANE, LEHMAN, O'BRIEN and HUBBS, JJ., concur; CROUCH, J., dissents.
Ordered accordingly.