Peters v. Fleming

• Citation: 46 S.W.2d 581,329 Mo. 870
• Decision Date: 17 February 1932
• Docket Number: 30026
• Parties: Arthur Peters v. Robert Fleming, Defendant, the London & Lancashire Indemnity Company of America, Garnishee and Appellant
• Court: Missouri Supreme Court

46 S.W.2d 581

329 Mo. 870

Arthur Peters v. Robert Fleming, Defendant, the London & Lancashire Indemnity Company of America, Garnishee and Appellant

No. 30026

Supreme Court of Missouri

February 17, 1932

Appeal from Circuit Court of City of St. Louis; Hon. James F Green, Judge.

Judgment for plaintiff against garnishee.

Affirmed.

Wilbur C. Schwartz and Charles E. Morrow for appellant.

(1) The circuit court acquired and had no jurisdiction of the subject-matter of this garnishment proceeding, for the reason that the writ of garnishment was not served upon the superintendent of insurance as provided by statute, and the court erred in holding that it had jurisdiction. Secs. 6085 6310, R. S. 1919. (2) The wording of the coverage clause of the contract and policy is clear and unambiguous. The plaintiff's evidence did not show that it covered the building in question, or the work being performed thereon by Fleming at the time plaintiff was injured. All the evidence shows that the building in question was not covered by the policy and it should have been so declared by the court as a matter of law. Meissner v. Ry. Equip. Co., 211 Mo 112. The construction of the policy was one of law for the court and not one of fact for the jury. Meissner v. Ry. Equip. Co., 211 Mo. 112. (a) The plaintiff could not institute a garnishment proceeding against Fleming under the provisions of the policy in question, because it is alleged by plaintiff that Fleming was insolvent and the policy provides that the insolvency or bankruptcy of the assured shall not release the company from payment of damages for injuries sustained or loss occasioned during the life of the policy, but an action may be maintained by the injured person against the company under the terms of the policy. (3) The court erred in admitting over the objection of the garnishee the evidence of the witness Kelly and the witness Fleming to the effect that after the plaintiff was injured the garnishee had collected premiums on the work on the building in question including the payroll covering plaintiff's wages at the time he was injured. The language of the coverage clause of the policy is unambiguous and should have been construed and declared as a matter of law by the court. Meissner v. Ry. Equip. Co., 211 Mo. 112. (4) The court erred in admitting the evidence of the witness Kelly that the building in question was a three-story building for "insurance purposes." (5) The court should not have submitted the construction of the policy to the jury. Meissner v. Ry. Equip. Co., 211 Mo. 112. There was no evidence in this case tending to prove that the garnishee construed and treated the building in question as a three-story building prior to the injury of the plaintiff. (6) The court erred in refusing to give Instruction 1, requested by the garnishee as asked, and erred in giving the same as modified. The construction of the policy was a question of law for the court. Meissner v. Ry. Equip. Co., 211 Mo. 112.

Murtha J. Hackett and James J. O'Donohoe for respondent.

(1) The circuit court had jurisdiction of the subject-matter of this garnishment proceeding, because the writ of garnishment was served upon the deputy superintendent as provided by statutes. The deputy possesses no power derived from the superintendent; rather they come to him by virtue of statutes. Secs. 5673, 5894, 5895, R. S. 1929; Kurre v. Am. Indemnity Co. (Mo. App.), 17 S.W.2d 685. (2) The building in question was three stories and basement in height and no more. Webster's New Int. Dict.; Bouvier's Law Dict.; Cent. Dict. & Ency.; 7 C. J. 933; Funk & Wagnall's New Standard Dict. Moreover, the policy considered in its details and entirety does not limit coverage to buildings three stories and basement in height. (3) At the time of the accident assured and respondent were engaged in masonry work. The word "masonry" is not a specific term, but is generic and includes tuckpointing and terra cotta work. The words "masonry" and "tuckpointing" are synonymous. Joseph N. Eisendrath Co. v. Gebhardt, 124 Ill.App. 325; Webster's New Int. Dict. (4) Failure to defend the damage suit and disclaiming liability constituted a breach of the insurance contract upon appellant's part and put an end to the defenses based upon the number of stories and class of work being performed by assured and respondent at the time the latter was injured. Goerss v. Indemnity Co. of America (Mo. App.), 3 S.W.2d 272, writ quashed, en Banc, in State ex rel. v. Daues, 13 S.W.2d 1059; Brucker v. Georgia Cas. Co., 32 S.W.2d 1091. (5) By holding on to the premiums collected for wages paid by assured for work upon the building in question, appellant waived the right to defend on the ground of height of building or that the work done did not come within the coverage of the policy and estoppel itself from doing so. Neither defense is available for those reasons alone. Block v. U.S. Fid. & Guar. Co., 316 Mo. 296; Goffe v. Nat. Surety Co. (Mo.), 9 S.W.2d 929; Malo v. Fire Ins. Co., 282 S.W. (Mo. App.) 78; 5 Cooley's Briefs on Ins. (2d) 4325. (6) Before this action was instituted, appellant put nonliability on the ground that the "building was more than three stories and basement in height," and upon that ground alone. And if there is any proposition more firmly established than any other, it is that "An insurance company, when sued upon a policy, cannot, after the beginning of suit, make any objections to paying the loss that are different from or additional to those which it stated before." Shearlock v. Mut. Life, 193 Mo.App. 430; Castner v. Ins. Co., 50 Mich. 273; Wolf v. District Grand Lodge, 102 Mich. 23; Brink v. Ins. Co., 80 N.Y. 108; Smith v. Ins. Co., 107 Mich. 270; Taylor v. Columbian League, 135 Mich. 231; Ins. Co. v. Allen, 128 Ala. 451; Snyder v. Mystic Circle, 122 Tenn. 248; Ins. Co. v. Waugh, 60 Neb. 348; McCormich v. Ins. Co., 163 Pa. 193, 194; Western & A. Pipe Lines v. Ins. Co., 145 Pa. 346; Mitchell v. B. of L. F. & E., 103 Neb. 791; Ins. Co. v. Elliott, 60 Ind.App. 112; Ins. Co. v. Ray, 196 Ala. 425; Ward v. Ins. Co., 69 Ore. 347; Milling Co. v. Ins. Co., 127 Iowa 314; Jacobs v. Sugar Refinery Co. (N. Y.), 115 A.D. 499; Strasburger & Co. v. Bonwit (N. Y.), 174 A.D. 215.

OPINION

White, P. J.

Plaintiff Arthur Peters, as an employee of defendant Robert Fleming, recovered judgment December 28, 1927, for $ 15,000 on account of personal injuries sustained September 15, 1925. Execution was issued upon that judgment and the Indemnity Company of America summoned as Garnishee. Upon the issues made up by the garnishee's answer to plaintiff's interrogatories, plaintiff's denial and garnishee's reply a trial was held resulting in a judgment in favor of the plaintiff and against the garnishee for $ 10,000, the limit of garnishee's indemnity policy in favor of Fleming. The appeal is from that judgment.

I. The garnishee makes the point that the court obtained no jurisdiction of the subject-matter of this action because the writ of garnishment was not served upon the Superintendent of Insurance but upon his deputy. The garnishee is not in position to urge the objection; it did not object to the jurisdiction of the circuit court in that court. It filed its answer to the interrogatories and went to trial upon the issues tendered.

Besides, under Section 5895, Revised Statutes 1929, service upon the deputy in case of the absence, etc., of the Superintendent, is made valid service. The return of the sheriff recites that the Superintendent of Insurance was absent and therefore service was had upon the deputy.

II. The appellant further claims that the indemnity policy sued on did not cover the building nor the work performed thereon by the defendant Fleming at the time and place where the plaintiff was injured.

The policy agrees to indemnify the assured (Fleming) against loss by reason of the liability imposed upon him for damages caused or bodily injuries suffered by any employee or employees of the insured, as the result of any accident "at a location named in the declarations or elsewhere and due to or caused by the operation of the trade or business of the assured as described in the declarations and conducted at the locations named therein."

It seems conceded that the declarations included the apartment building at 4616 Lindell Avenue in the city of St. Louis. To the policy is attached a rider "for the purpose of furnishing additional space for description of business operations and premium rates for work," etc. It contains this clause:

"Kind of Trade, Business, Profession or Occupation (Manual Classification) -- 1. Contractors -- Building private residences, flats or apartments, with or without stories, one story stores and stores with offices above, private stables and private garages, and buildings not mercantile or factory, all not exceeding three stories and basement in height (no blasting), excluding the erection of churches, theatres, railroad stations, round houses, court houses, city halls and capitol buildings."

The defendants introduced some photographs of the building at 4616 Lindell which it is claimed show the building was four stories high instead of three stories and basement. The photograph of the front of the building shows the first floor is of stone, the three floors above of brick; the side of the building shows except at the front four floors of brick. Whether or not there were more than three stories or a basement turns largely upon the meaning of the word "basement." Respondent cites some authorities including 7 Corpus Juris, 933, and the dictionaries to the effect that a basement is the lower part of a building. It may be partly below the ground. One of the witnesses said a basement was anything below the floor level or street level....