Bituminous Casualty Corporation v. Walsh & Wells, Inc.

• Decision Date: 07 April 1943
• Docket Number: No. 26227.,26227.
• Citation: 170 S.W.2d 117
• Court: Missouri Court of Appeals
• Parties: BITUMINOUS CASUALTY CORPORATION v. WALSH & WELLS, Inc.

170 S.W.2d 117

BITUMINOUS CASUALTY CORPORATION v. WALSH & WELLS, Inc.

No. 26227.

St. Louis Court of Appeals. Missouri.

April 7, 1943.

Rehearing Denied April 23, 1943.

Appeal from St. Louis Circuit Court; William B. Flynn, Judge.

"Not to be reported in State Reports."

Action by Bituminous Casualty Corporation against Walsh & Wells, Incorporated, for balance due for insurance premiums wherein defendant filed a counterclaim. Judgment for defendant, and plaintiff appeals.

Affirmed.

Igoe, Carroll, Keefe & Coburn and Victor A. Wallace, all of St. Louis, for appellant.

Bakewell, Bakewell & Cramer and Claude I. Bakewell, all of St. Louis, for respondent.

SUTTON, Commissioner.

Plaintiff in its petition alleges that it issued to defendant certain policies of insurance for which defendant promised to pay plaintiff certain premiums; that the total premiums on the insurance so issued for the period from March 31, 1937, to December 12, 1937, amounted to $10,710.43; that defendant on December 28, 1937, paid on account of said premiums $8,493.43, leaving a balance due and owing from defendant to plaintiff of $2,217, for which balance with interest plaintiff prays judgment.

Defendant in its answer admits that between March 1, 1937, and December 12, 1937, the premiums which it contracted to pay plaintiff for insurance aggregated $10,710.43, and that it has paid thereon the sum of $8,493.43, leaving an unpaid balance of $2,217, and admits that, as shown by plaintiff's statement of account filed with its petition, $2,058.20 of said balance constitutes a premium charge for policy No. 5541, and by way of a counterclaim alleges that plaintiff is indebted to defendant in the sum of $2,420, which debt exists as an obligation of plaintiff to defendant under said policy No. 5541; that by said policy plaintiff agreed to indemnify the assured against loss from all liability imposed by law upon the assured on account of damage to property from accident; that while said policy was in force the assured was engaged in the construction of the Maline Creek sewer under a contract with the City of St. Louis, and that in the course of such construction the assured was required to do tunneling and did do tunneling under and beneath property owned by Fredericke Mueller; that as a result of such tunneling due to accident the assured damaged a building owned by said Mueller, and that the law imposed a liability upon the assured on account of such damage; that plaintiff as insurer was promptly advised of such damage and of the claim asserted as the result thereof by said Mueller against the assured, but that plantiff as insurer denied any liability therefor under the said policy issued by it, and that thereafter, under threat of suit by the said Mueller, the assured settled its legal liability for such damage by paying to said Mueller in full discharge thereof the sum of $2,000, and that the necessary and proper expenses as attorney's fees for counsel for assured in making settlement was $200, which was paid by the assured, for which said amounts, with interest, defendant prays judgment against plaintiff.

Plaintiff in its reply sets forth by way of a defense to defendant's counterclaim certain provisions of the policy which it alleges relieves it of liability for the payments made by defendant as alleged in its counterclaim.

The trial was to the court, without a jury. The court found in favor of plaintiff on its petition for $2,744.29, including interest, and in favor of defendant on its counterclaim for $2,795.46, including interest, and gave judgment accordingly in favor of defendant for $51.17. Plaintiff appeals.

By the policy the defendant company agrees to pay all sums which the assured shall become liable to pay as damages imposed by law for bodily injuries, including death resulting therefrom, accidentally suffered or alleged to have been suffered, during the policy period by any person or persons not employed by the assured; to serve the assured by investigation of injuries and by such negotiation and settlement of resulting claims or suits as may be deemed expedient by the company; to pay, in addition to damages, all expenses incurred by the company for investigation, negotiation, or defense, all costs taxed against the assured in any such suit defended by the company, all interest accruing on any judgment for which the company is liable in whole or in part, up to the date the company shall have paid, tendered or deposited in court such part of such judgment as does not exceed the limit of liability for the company; and to reimburse the assured for the cost of such immediate surgical relief as shall be imperative at the time of the accident. The policy further provides as follows:

"The assured shall not voluntarily assume any liability nor incur any expense other than for immediate surgical relief, nor settle any claim, except at the assured's own cost. The assured shall not interfere in any negotiation for settlement, nor in any legal proceeding, but whenever requested by the Company the assured shall aid in securing information and evidence and the attendance of witnesses, and shall co-operate with the Company, except in a pecuniary way, in all matters which the Company may deem necessary in the defense of any suit or in the prosecution of any appeal.

"No action shall lie against the Company to recover for any loss under this policy unless brought within two years after the amount of such loss is made certain, either by judgment against the assured after trial of the issue or by agreement between the parties with the written consent of the Company."

There was attached to and made a part of the policy an endorsement providing that the policy, subject to its provisions and conditions, is extended to indemnify the assured against loss from the liability imposed by law upon the assured on account of damage to or destruction of property of every description, including resultant loss of use thereof, resulting from any accident occurring within such time and under such circumstances as would make the company liable under the insuring clause of the policy if bodily injury or death resulted from such accident. Both the policy and the endorsement lists, in schedules of operations covered, among others, the following: Street or road paving or repaving, street or road construction, sewer construction, and tunneling. The endorsement further provides, as follows: "This endorsement * * * shall not cover * * * the collapse of or structural injury to any building or structure adjacent to the premises where the assured's operations are carried on, due to the removal of other buildings, structures or supports, or to excavations below the natural surface of the ground, or to blasting therein or thereon."

From an agreed statement of facts it appears that while the policy and endorsement were in effect defendant was constructing the Maline Creek Sewer, under contract with the City of St. Louis, which required the construction of a part of said sewer under a building owned by Fredericke Mueller and located near Riverview Drive in the northern part of St. Louis.

As a result of the construction of such part of the sewer said building and other improvements owned by said Mueller settled and were damaged and Mueller asserted a claim on account of such damage.

Defendant promptly advised plaintiff of the claim asserted by Mueller, but plaintiff denied any liability therefor under its said policy No. 5541, and the endorsement thereon, and thereafter defendant, under threat of suit by Mueller, but without any legal proceeding having actually been instituted, settled his claim for damage to his property by paying to him in full discharge thereof the sum of $2,000, and also paid its attorney a fee of $200 for negotiating the settlement with Mueller.

David Q. Wells testified, for defendant, that his occupation was that of a general contractor, and that he was connected with the defendant; that defendant had a contract with the City of St. Louis for the construction of the Maline Creek Sewer in North St. Louis, and was constructing the sewer; that a part of the sewer ran underneath the property of Fredericke Mueller, and that this particular part of the sewer was specified in the contract drawings to be constructed in a tunnel; that the sewer ran along Riverview Drive...