I concur in the result but disagree with the portion of the statement in the opinion *Page 299 to be italicized in the quotation to follow: "The injuries referred to [in sec. 1(b) of the policy] are those for which an employer would be called upon to respondunder the Workmen's Compensation Law, as well as any common law liability."
Rather, I concur in the view accepted by counsel for both parties in the cause before us succinctly expressed by counsel for appellant (plaintiff below) in his brief in chief that paragraph 1(b): "* * * of necessity means damages incurred by reason of a common law liability and has no reference whatsoever to the provision of the Workmen's Compensation Law as contemplated in paragraph 1(a)."
Hence, the "no action" clause contained in Condition G is without application to workmen's compensation claims covered by paragraph 1(a) as argued by appellant. That it is without application is definitely shown by the very language of paragraph 1(a) expressing the insurer's covenant with the employer: "To pay promptly to any person entitled thereto under the Workmen's Compensation Law and in the manner therein provided, the entire amount of any sum due, and all installments thereof as they become due, (1) to such person because of the obligation for compensation for any such injury imposed upon or accepted by this employer under such of certain statutes, as may be applicable thereto," etc. (Italics mine).
The company (insurer) thus agrees with the employer that it will pay promptly and as a direct obligation of its own (Condition D) not only such compensation claims as may be imposed upon (meaning, of course, by action) but such also as may be accepted by the employer (meaning, of course, without action). Here, the employer did accept liability for the claim and called upon the insurer to make good its covenant to pay. This it refused to do and the employer paid the same. An action lies by the employer as of course for breach of the insurer's covenant to pay.
An employer's business may be such that some of his workmen are within the protection of the Workmen's Compensation Act and others without such protection. Or, the work of a certain employee may, at times, have the protection of compensation while on other occasions he may be engaged in work not affording such protection. Hence, it is sometimes the case that an employer will protect himself by insurance against both liabilities, viz., workmen's compensation liability and common-law liability for negligence. Frequently, the coverage is in one policy as in the case at bar. See Wood v. Employers' Liability Assurance Corporation; 7 Cir., 41 F.2d 573, 73 A.L.R. 79, and annotation following at 73 A.L.R. 86, supplemented in 117 A.L.R. 1299.
For the reason given, I think the demurrer should have been overruled. Hence, I concur in the result.
BRICE, J., concurs.
BICKLEY, C.J., concurs in the result. *Page 300