Herein the judgment is reversed and the cause is remanded. While it is said in the opinion that estoppel was not pleaded, upon a remand of the case estoppel may be pleaded.
The petition of plaintiff may be amended to conform to the facts established, without objection, when the cause is remanded or the allegations of the petition may be considered as amended now. If under our rule so often announced, the petition of plaintiff is considered amended, it does appear, from undisputed evidence and from an exhibit, that the premium upon the indemnifying policy of insurance was paid by the indemnitee, Dawson Produce Company, both as to its liability under Workmen's Compensation Law and "1(b) . . . against loss by reason of liability imposed upon him (employer) by law fordamages . . .", it is elementary that an award under the Workmen's Compensation Law is, irrespective of negligence, not damages, but a compensation for scheduled liability of industry as an incident of the wreckage of humanity employed. The action at bar is to recover an indemnity as contracted for damages for personal injuries sustained as a result of negligence adjudged against and paid by the indemnitee.
The majority opinion determines that the relation of the parties was that of joint adventurers. The co-adventurer of Dawson Produce Company was employed to labor and was injured as a result of Dawson Produce Company's negligence. Judgment was rendered therefor as against Dawson Produce Company. Dawson Produce Company was indemnified by United States Fidelity Guaranty Company, insurer. The insurer was liable by application of the law of negligence. The insurer elected not to defend the action for damages against indemnitee, Dawson Produce Company, though called upon to do so. This court has held that as to a city's indemnifying policy of insurance, where a city paid out money because of injury to its employed policeman, the indemnitor must indemnify the indemnitee. If the policy of insurance had coverage, the same rule applies here. Insurer collected premiums based upon Dawson Produce Company's liability for injuries that might be sustained by co-adventurer of the indemnitee.
The rule that a policy of insurance will be construed strongly against the insurer applies. By the text of the policy, coverage is contracted. The contractual *Page 548 relation should be liberally interpreted in favor of the indemnitee. As the insurer assumed a broad liability and failed to defend its indemnitee, and the indemnitee, as a result of judgment, paid its liability covered by the policy, the judgment against the indemnitor should be affirmed.