Ocean Accident & Guarantee Corp. v. Jansen

• Decision Date: 20 April 1953
• Docket Number: No. 14277.,14277.
• Citation: 203 F.2d 682
• Parties: OCEAN ACCIDENT & GUARANTEE CORP., LIMITED, v. JANSEN.
• Court: U.S. Court of Appeals — Eighth Circuit

203 F.2d 682 (1953)

OCEAN ACCIDENT & GUARANTEE CORP., LIMITED, v. JANSEN.

No. 14277.

United States Court of Appeals Eighth Circuit.

April 20, 1953.

Edwin Cassem, Omaha, Neb. (George L. DeLacy and Kennedy, Holland, DeLacy & Svoboda, Omaha, Neb., on the brief), for appellant.

Edson Smith, Omaha, Neb. (Herbert E. Story, Omaha, Neb., on the brief), for appellee.

Before GARDNER, Chief Judge, and THOMAS and COLLET, Circuit Judges.

COLLET, Circuit Judge.

The appellee, William Jansen, was the operator of a tavern in Omaha, Nebraska. The premises were leased from the owner, the Eagle Realty Company. Jansen carried a "premises-liability insurance policy" with the Western Casualty Company insuring him against noncontractually assumed liability in the operation of the tavern. The Eagle Realty Company, as the owner, carried a liability policy with the appellant, The Ocean Accident and Guarantee Corporation. The lease between the owner and Jansen contained an indemnity covenant in the following language:

"8. The Lessee shall keep said premises and operate his business therein in a manner which shall be in compliance with all laws, rules and regulations, orders and ordinances of the city, county, state and federal government and any department of either, and will not suffer or permit the premises to be used for any unlawful purpose, and he will protect the Lessor and save him and the said premises harmless from any and all fines and penalties and any and all damages or injuries that may result from or be due to any infractions of or noncompliance with, the said laws, rules, regulations, orders and ordinances. Lessee agrees to keep the said premises and all sidewalks and approaches thereto in a safe condition and free and clear of ice and snow and all other matters which may be dangerous to the public and free of all obstructions and that Lessee will protect the Lessor and save Lessor harmless against any claims or demands for damages on account of injuries resulting from the accumulation of any ice, snow or other dangerous matter or defects or obstructions in or upon the sidewalks, aisles and other approaches to and in said premises, and from defects in any part of or arising from any cause connected with the use of the premises, or arising from any accident, injury or damage whatsoever, however caused to any person or to the property of any person, occurring during said term in or about the leased premises or upon or under the sidewalks and approaches thereto and from and against all costs, attorneys fees, expenses and liabilities incurred in or about any such claim or any action or proceeding brought thereon.

* * * * * *

"In Witness Whereof, the parties hereto have executed this lease on the date first above written."

Two claims arose on account of the death of George E. Kernes and Joseph Ault, resulting from each of them on different occasions falling down the stairs leading from the room in which the tavern was operated to a toilet located on the floor below. The claim of Kernes' administratrix was for $1,000.00. It was made against both the owner and Jansen. The Ault claim was for $7,000.00 and was likewise made against both Jansen and the owner. Both were settled in the following manner. The Western Casualty settled on behalf of Jansen for $500.00, obtaining a covenant not to be sued and leaving the claimant free to pursue the owner. When the claim was presented to the owner, the Eagle Realty Company, its insurer, the Appellant Ocean Accident and Guarantee Corporation, notified Jansen of the claim, asserted Jansen's liability to the owner under the covenant of indemnity in the lease to save the owner and its insurer and subrogee, the appellant, harmless from such claims, and demanded that Jansen acknowledge his asserted responsibility under the covenant of the lease and defend or pay the claim, or, if he did not, appellant notified Jansen that it would settle the claim and hold Jansen responsible for reimbursement. Jansen denied responsibility or liability. Appellant settled for $500.00 and incurred an attorney fee of $117.50. The Ault claim was handled in the same manner, the Western Casualty paying one-half — $3,500.00 — on behalf of Jansen, appellant paying $3,500.00 and an attorney fee of $117.50. Appellant then brought this action against Jansen to recover the total of both settlements and attorney fees, asserting Jansen's liability therefor to the owner under the indemnity covenant of the lease and to appellant under its subrogation agreement with the owner. Appellant alleged in its complaint that the claims were made against it and Jansen upon the ground that the stairs were maintained in a negligent manner and now contends that since the evidence shows that a city ordinance required that the stair treads be 10 inches wide and they were only approximately 9½ inches, and since the ordinance required a handrail and the evidence showed there was none on the upper portion of the stairway, that its liability to claimants was established and the payment of the claims justified.

Jansen defended upon the ground, among others, that the indemnity covenant did not cover injuries occurring on the premises occasioned by the negligence of the owner. That since the only basis for the claim against the owner, and...