American Paper Products Company, a Corp. v. Continental Insurance Company, a Corp.

• Decision Date: 07 December 1920
• Parties: AMERICAN PAPER PRODUCTS COMPANY, a Corporation, Respondent, v. CONTINENTAL INSURANCE COMPANY, a Corporation, Appellant
• Court: Missouri Court of Appeals

225 S.W. 1029

208 Mo.App. 87

AMERICAN PAPER PRODUCTS COMPANY, a Corporation, Respondent, v. CONTINENTAL INSURANCE COMPANY, a Corporation, Appellant

Court of Appeals of Missouri, St. Louis

December 7, 1920

Appeal from the Circuit Court of Lincoln County.--Hon. Edgar B Woolfolk, Judge.

AFFIRMED.

Judgment affirmed.

Leahy & Saunders for appellant.

(1) The demurrer should have been sustained at the close of the plaintiff's case because plaintiff's own evidence showed that it was within the exceptions of the policy of insurance. If this was true at the close of the plaintiff's case a fortiori it was true at the close of the whole case. Frisbie v. Fidelity Casualty Co., 133 Mo.App. 30; Cohn v. Nat. Ins. Co., 96 Mo.App 315; German-American Ins. Co. v. Hyman, 94 P. 27; German Alliance Ins. Co. v. Hyman, 94 P. 27; Mitchell v. Potomac Ins. Co., 183 U.S. 42; German Fire Ins. Co. v. Roost, 45 N.E. 1097; Strong v. The Sun Mutual Ins. Co., 31 N.Y. 103; St. John, etc., v. The Amer. Mut. Fire and Marine Ins Co., 11 N.Y. 516; Evans v. The Columbian Ins. Co., 44 N.Y. 146; Hustice v. Phoenix Ins. Co. of Brooklyn, 175 N.Y. 292, and cases cited therein; Insurance Co. v. Boon, 95 U.S. 117; Hayward v. Ins. Co., 3 Keyes (N. Y.) 456; Hayward v. Ins. Co., 2 Abbot Decisions (N. Y.) 349. (2) The court erred in giving instruction No. 1 because all of the testimony in the case, both for the plaintiff and for the defendant, showed conclusively and beyond a doubt that the damage to the plaintiff's stock was caused by an explosion. Mitchell v. Potomac Ins. Co., 183 U.S. 42; St. John v. The Sun Mutual Ins. Co., 31 N.Y. 103; Hustice v. Phoenix Ins. Co. of Brooklyn, 175 N.Y. 292, and cases therein cited; Heuer v. Ins. Co., 144 Ill. 393. The court erred in giving instruction No. 2 because there was no evidence of any vexatious refusal to pay. Non-Royalty Shoe Co. v. Phoenix Assur. Co., Ltd., 210 S.W. 37; R. S. 1909, sec. 7068. The court erred in giving instruction No. 3 because there was no evidence that the damage to the plaintiff's stock was caused by anything but an explosion. Frisbie v. Fidelity Casualty Co., 133 Mo.App. 30; Cohn v. Nat. Ins. Co., 96 Mo.App. 315; Hustice v. Phoenix Ins. Co. of Brooklyn, 175 N.Y. 292, and cases therein cited. (3) The argument made by counsel for plaintiff was improper and highly prejudicial. Barr v. Quincy, O. & K. C. R. Co., 138 Mo.App. 471; Barnes v. City of St. Joseph, 139 Mo.App. 545. (4) The verdicts as received were both improper. Shohoney v. Q., O. & K. C. Ry. Co., 223 Mo. 649. (5) Defendant had a right to introduce depositions taken in the cause and to use admissions made in them. Bogie v. Nolan, 96 Mo. 85; Black v. Epstein, 221 Mo. 286.

Leonard, Sibley & McRoberts and Shepard Barclay for respondent.

(1) Ambiguity in the language of a policy, as to liability of the insurer, should be interpreted most favorably to the insured. Renshaw v. Ins. Co., 103 Mo. 611; Ethington v. Ins. Co., 55 Mo.App. 129; Sutton v. Ins. Co., 208 S.W. 499; Malin v. Ins. Co., 219 S.W. 143; Rieger v. London Co., 215 S.W. 920; Union v. Colehouse, 227 Ill. 565; Baker v. Ins. Co., 157 F. 280. (2) The facts, which defendant claims amount to an "explosion," are not within established and ordinary meanings of that word, which import combustion in some form, which is absent here. Joyce, Insurance (2 Ed.), sec. 2768; Century Dictionary (1911) "Explode," p. 2083. (3) The burden of proof to establish the claim of exemption from liability on the ground of "explosion" was upon defendant, as the court instructed (Rec. p. 179). No error is assigned thereon. Joyce, Insurance (2 Ed.), sec. 3796a; Hester v. Fidelity Co., 69 Mo.App. 186; Van Valkenburgh, 70 N.Y. 605. (4) Exceptions of risks in insurance policies are to be construed strictly against the insurer. 16 A. & E. Ency. L. (2 Ed.), p. 863; Joyce, Insurance (2 Ed.), sec. 220; Laker v. Royal Union, 95 Mo.App. 353; Ethington v. Ins. Co., 55 Mo.App. 129. (5) As defendant admitted by its answer that the damage to plaintiff's property was caused by the "leakage of water," the issue whether that was within the exemption of the policy, as an "explosion," was one of fact, unless a verdict for plaintiff was directed as in our point 8. (6) Both parties having submitted the issue of "explosion" to the jury as a fact, defendant cannot properly except thereto on appeal, as plaintiff's testimony tends to show there was no explosion within the meaning of the policy, most favorable to the insured. Parties are bound on appeal by the positions they take in the trial court. Harper v. Morse, 114 Mo. 317; Green v. City, 106 Mo. 455; Ellis v. Harrison, 104 Mo. 270. (7) The proceedings show no minor errors warranting reversal, and the points assigned are not substantial and do not bear on the merits of the result. Gordnor v. Screw Co., 201 Mo.App. 349; O'Hara v. Lamb Co., 200 Mo.App. 292. (8) The damage to plaintiff's property by water is referrable to the leakage from the springing pipes as the direct cause. On the undisputed facts, the so-called "explosion" was not a direct cause of any damage. Renshaw v. Ins. Co., 103 Mo. 595; Ins. Co. v. Willard, 164 F. 404, 212 U.S. 581; Ins. Co. v. Stanton, 191 F. 813; Joyce, Insurance (2 Ed.), sec. 2590; Ins. Co. v. Robinson, 64 Ill. 265; Heffron v. Ins. Co., 132 Pa. 580; Ins. Co. v. Parker, 23 Ohio St. 85; Baker v. Ins. Co., 157 F. 280; Ins. Co. v. Corlies, 21 Wend. 367; Briggs v. Ins. Co., 66 Barb. 325, 53 N.Y. 447; Vorse v. Ins. Co., 119 Iowa 555.

BIGGS, C. Reynolds, P. J., Allen and Becker, JJ., concur.

OPINION

BIGGS, C.

This is a suit upon a Sprinkler Leakage Policy which indemnified the plaintiff against all direct loss or damage by sprinkler leakage, except as provided in the policy. No question arises upon the form of the petition; nor over the fact that plaintiff's goods were damaged in the amount claimed by reason of the giving way of the sprinkler system, thereby flooding plaintiff's premises with water.

The answer was a general denial, coupled with a special defense as follows:

That it was provided that said policy was made and accepted subject to the foregoing stipulations and conditions, and to the following stipulations and conditions, among others, to-wit:

"This company shall not be liable for loss by fire, however caused; nor for loss resulting from the leakage of water, if such leakage is caused directly or indirectly by fire; nor for loss due to stoppage or interruption of any work in plant unless liability for such loss is specifically assumed herein; nor for loss caused by lightning (whether fire ensues or not), cyclone, tornado, windstorm, earthquake, explosion or blasting . . . nor for loss caused directly or indirectly by the fall or collapse of any building or any part thereof, unless such fall or collapse is caused by the accidental leakage of water from automatic sprinkler system, or the tanks supplying it."

Defendant further states that on or about the 20th day of February, 1916, the plaintiff was engaged in the business of the manufacture of fiber shipping cases, in the building described in said policy and contract, and that at its said place of business maintained and operated in connection with its said business a stationary engine operated by steam, in connection with which the said plaintiff maintained and operated a steam boiler; that said steam boiler was at said time connected by a steam and water pipe with an iron blow-off and drainage catch basin which were situated underneath the board flooring of the boiler room, or room in which said boiler was situated; that the plaintiff at said time maintained as a part of the water sprinkler system in its said place of business, a water pipe suspended from the ceiling of the said boiler room; that said blow-off tank on said day exploded, thereby breaking and opening the said sprinkler water pipe, and that the discharge and leakage of water described in plaintiff's said petition was caused by plaintiff's said sprinkler water pipe being broken, as aforesaid, by said explosion; that the said damage described in plaintiff's petition, was, if any, caused by said explosion on the premises of said plaintiff, and the said alleged damage is not within the terms of the agreement between plaintiff and defendant, as aforesaid, and this defendant is not liable therefor.

By a reply, plaintiff admitted that it operated a steam engine and boiler, and that it maintained a hot-well or cooling basin and a sprinkler system, but denied that the hot-well exploded, and declared the fact to be that it was jarred apart or ruptured by internal pressure or in fact, entirely distinct from explosive force, and plaintiff denied that this was the proximate cause of the leakage of water and of the consequent loss or damage complained of.

The cause was tried before a jury, to which was submitted the issue of fact as to whether or not there was an explosion which caused the loss. The jury returned a verdict for the amount claimed, $ 1754.71, and for attorney's fees, and damages for vexatious delay in payment. After a voluntary remittitur of the items of attorney's fees and damages, judgment was entered for plaintiff for $ 1754.71, from which judgment the defendant has appealed after taking the customary steps.

Defendant first asserts that under the uncontradicted evidence and the physical facts, there was an explosion of the hot-well, as that term is ordinarily used and understood, which explosion caused the water pipe of the sprinkler system to break resulting in the damage, and for which it is not liable under the exception stated in the policy, and that, therefore, its demurrer to the evidence should have been sustained. Other incidental alleged errors it will be unnecessary to notice, considering the view we take of the...