Aetna Cas. & Sur. Co. v. Haas
| Decision Date | 08 January 1968 |
| Docket Number | No. 2,No. 52787,52787,2 |
| Citation | 422 S.W.2d 316 |
| Court | Missouri Supreme Court |
| Parties | The AETNA CASUALTY & SURETY COMPANY, a Corporation, Appellant, v. Rowena B. HAAS and Andrews Exterminating Company, Inc., a Corporation, Respondents |
Clem W. Fairchild, Herbert M. Kohn, Kansas City, for plaintiff-appellant. Linde, Thomson, VanDyke, Fairchild & Langworthy, Kansas City, of counsel.
Max W. Foust and Duke W. Ponick, Jr., of Foust, Moudy & Jacobson, Kansas City, for Rowena B. Haas.
Roger W. Penner of Meyer, Smith, Bott & Penner, Kansas City, for defendant-respondent Andrews Exterminating Co., a Corporation.
PRITCHARD, Commissioner.
Appellant sought to be relieved of liability to pay a judgment in principal amount, $23,081.00, which was rendered upon default against its named insured, respondent Andrews Exterminating Company, Inc., in an issued Comprehensive General Liability Policy of insurance. The grounds asserted for declaratory relief that there is no coverage under the policy are (1) an exclusionary clause of no liability is effective because the explosion (in respondent Haas' private residence which was being fumigated by a fogging insecticide operation) occurred while the residential property was in the 'care, custody or control of the insured'; and here (2) the policy specifically excludes coverage when gas of any kind is used by the insured, it being contended that the fogging operation is a use of gas. The trial court denied relief to appellant and found that there was insurance coverage and appellant was liable for said judgment rendered against its insured, Andrews, and further rendered judgment for $1,154.05 interest on that judgment and for $1,500.00 as expenses and attorney fees incurred in defending the original action upon Andrews' counterclaim for those three items, a total of $25,735.05.
It was stipulated that all depositions taken in the cause would be received in evidence the same as if the witnesses were present in court. The direct testimony in the deposition of George C. Eaden, who performed the fogging operation in Mrs. Haas' residence, was read: He has been in the exterminating business for 38 years, applying insecticide and rodenticide to kill insects and rodents. On Mrs. Haas' house he was using Dyna-Fog equipment to bring a chemical from the liquid to the fog. The machine is taken from place to place inside the house, from the basement up through it. His custom is to start fogging in the basement in the majority of times. A check is first made to see that all windows are closed and that there is no cross-ventilation to take the fog out, and to see that there are no people in the house. When Eaden first went to Mrs. Haas' house, he talked to her a few minutes and went to the basement which he fogged. Mrs. Haas was still in the kitchen, the last place he was going to fog, when he started the fogging machine. He presumed that he told Mrs. Haas to leave the house, 'because it was understood she would have to be out.' He told her she would have to be out because the fog would be too strong for her. Mrs. Haas was in the kitchen when he finished the basement and went upstairs; she was gone when he came back down again. She was instructed that she would have to stay out of the house four or five hours. Eaden came down the front stairs from the second floor, worked the front part of the house, and then toward the rear where he was going to exit from the rear door, which was closed. He was in a little alcove when the explosion occurred. He went to the neighbor's house where he saw Mrs. Haas. Eaden's further deposition testimony (objected to at the trial on the ground that questions called for conclusions and invaded the province of the court) was that as long as he was doing the job he could take whatever steps were necessary to seal up the house and do the job right, and while he was there he could do as he pleased in those regards; that from his long years of experience in the field, if someone walked in the house he could have told them to leave, 'Yes, I have the privilege to stop anyone from coming in.' He had the privilege to take whatever steps were necessary to do the job right and protect the health and safety of others. If Mrs. Haas had wanted to come in while he was fogging the house he would have stopped her, or anyone else, if he had already fogged the upstairs and part of the first floor. Many times he just hooked the screen so that persons could not come in while he was upstairs--to keep someone from coming in he felt it was his prerogative and part of what he should do.
Mrs. Haas' deposition testimony is that when she left the house she left Eaden there by himself; she assumed that he could do whatever was necessary to properly do the job--he could open and close windows, doors, or drawers or 'whatever he wanted to do.' So far as she knew he could put the fog anywhere he wanted; she expected him to exercise whatever functions he had to inside the house to do his work properly; with respect to going back in the house or when she could go back in she would look to Eaden for advice; she left it all up to him. At the time of the explosion, Mrs. Haas was sitting in a neighbor's house, to the rear of her house, drinking coffee. She saw the roof of her house lift up about a foot. When Eaden commenced the fogging operation Mrs. Haas was in her own home washing dishes in the kitchen. She remained in the house while Eaden fogged the basement and the second floor, and when the odor got so bad it was hurting her throat she said to Eaden, 'I believe I'll go to the neighbors, because the odor is so bad.' Eaden did not tell her to leave; he did not tell her that once he started putting in the fog it would be dangerous to her. She called the Andrews office to arrange the fogging and told them she wanted it done while she was at home. She did not give Eaden the key to the house, but had it with her when she went over to the neighbor's house. She told him that as soon as he was through spraying to let her know and she would lock the house and then go on to work. She had not been at the neighbor's house very long when the explosion occurred.
Appellant contends that paragraphs J of the exclusions of the policy is applicable: 'This policy does not apply: (J) under coverage D, to injury to or destruction of (1) property owned or occupied by or rented to the insured, or (2) except with respect to liability under sidetrack agreements covered by his policy, property used by the insured, or (3) except with respect to liability under such sidetrack agreements or the use of elevators or escalators at premises owned by, rented to or controlled by the named insured, property in the care, custody or control of the insured or property as to which the insured for any purpose is exercising physical control, * * *.' (Emphasis added to the phrase relied upon by appellant.) The trial court made a finding and conclusion that this clause is ambiguous and that 'a practical construction of the contract of insurance in favor of coverage has been made by the plaintiff insurance company by paying a prior, similar type loss under identical policy provisions without invoking the exclusions which are relied upon in this action.' The evidence upon which the trial court's action is based is that on an identical Comprehensive General Liability policy (of which the instant policy is a renewal without further reservation, restriction or insertion of clarifying exclusion) appellant in 1960 paid a loss occasioned by Andrews' damage to property of one E. J. Sweet totalling $679.38, wherein Andrews was spraying for silverfish in a home and the insecticide left a residue upon the wallpaper and furniture. Mr. William H. Lillis, a partner in the agency issuing Aetna's policies, testified that the manual classification for the premium to be charged was selected knowing the kind of work Andrews was in. After the loss was occasioned to Mrs. Haas' residence, appellant's adjuster, Michael G. Zipkin, advised Raymond E. Beaird, owner of Andrews, that the policy covered the Haas loss. Zipkin, on May 31, 1962, wrote to Beaird and requested that he write a letter (the form of which was enclosed by Zipkin) to the manufacturer and distributor of the Dyna-Fog machine advising that Andrews would look to it for indemnity for the Haas loss. Beaird did send a letter in modified form to that manufacturer. Appellant denied coverage for the Haas loss on July 12, 1962, on the sole ground of said Exclusion J relating to care, custody and control. In a subsequent meeting with Lillis, Zipkin was told by Lillis that he felt the loss was covered by the policy for two reasons: that the prior Sweet loss was paid by appellant (indicating coverage for a following similar loss) and that the nature of the work performed by Andrews was such that if a care, custody and...
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