Corder v. Morgan Roofing Co.

• Decision Date: 10 June 1946
• Docket Number: 39656,39657
• Parties: J.S. Corder and Maude S. Corder v. Morgan Roofing Company, a Corporation, Defendant, and Bituminous Casualty Corporation, a Corporation, Appellant
• Court: Missouri Supreme Court

195 S.W.2d 441

355 Mo. 127

J.S. Corder and Maude S. Corder
v.
Morgan Roofing Company, a Corporation, Defendant, and Bituminous Casualty Corporation, a Corporation, Appellant

Nos. 39656, 39657

Supreme Court of Missouri

June 10, 1946

Rehearing Denied July 8, 1946.

Appeal from Vernon Circuit Court; Hon. O. O. Brown, Judge.

Affirmed in part and reversed in part.

F. H. Richart and Bruce Barnett for appellant.

(1) No premises are described other than at 623 Joplin Street in Joplin, Missouri, and no premises are described by the words "elsewhere in the state of Missouri," as said words appear in said "Special Condition 4." Doherty's Case, 294 Mass. 363, 2 N.E.2d 186; Brown v. Jones, 4 Fed. Cas. No. 2017; West Texas Stone Co. v. Employers Cas. Co., 178 S.W.2d 168; Jacobs Concessions, Inc., v. U.S. Fidelity & Guaranty Co., 181 Md. 113, 28 A.2d 858. (2) By the word "premises," a public highway or any place upon a public highway cannot be deemed to have been referred to. Doherty's case, supra; Brown v. Jones, supra; West Texas Stone Co. v. Employers Cas Co., supra; Jacobs Concessions, Inc., v. U.S. Fidelity & Guaranty Co., supra. (3) Referring to said words "elsewhere in the state of Missouri," as those words appear in said part of said policy therein referred to as "Special Condition 4," even if it could be held that thereby any premises are intended to be referred to other than the place of business of the defendant Morgan Roofing Company at premises numbered 623 on Joplin Street in Joplin, even then, applying the rule of ejusdem generis, no premises could be held to be so referred to other than places of like character. Fulkerson v. Great Lakes Pipe Line Co.; 335 Mo. 1058, 75 S.W.2d 844; State v. City of Camden, 52 N.J. Law 289, 19 A. 539. (4) And the place upon the public highway where plaintiff's said injuries were sustained could not be held to constitute any premises or place of business of the defendant Morgan Roofing Company. State ex rel. v. Blair, 350 Mo. 858, 169 S.W.2d 59; Rutherford v. Tobin Quarries, 336 Mo. 1171, 72 S.W.2d 918; Stockton v. Anderson Motor Serv. Co., 230 Mo.App. 211, 89 S.W.2d 573. (5) The scope or coverage of the insurance evidenced by said policy is not extended nor enlarged by said alleged certificate. Because said alleged certificate pertains only to "the assured's operations in connection with the assured's contract on P.W.A. Docket No. 5131-L-2"; and there is no evidence that the respondents' bodily injuries complained of resulted from any operation or operations in connection with said particular contract. 34 C.J. 927; Dolph v. Maryland Casualty Co., 303 Mo. 534, 261 S.W. 330; Kimpton v. Spellman, 351 Mo. 674, 173 S.W.2d 886. (6) Said alleged certificate is not and does not purport to be an instrument of contract, the same being a mere statement certifying that this appellant had insured the defendant Morgan Roofing Company by the policies referred to in said certificate, as and to the extent and subject to the provisions and restrictions of said policies. Longley v. Prudential Ins. Co., 161 S.W.2d 27. (7) Even if said certificate could be treated as though it were a policy of insurance or instrument of contract, it would be subject to the conditions and restrictions of the policies therein referred to. Fogle v. Fidelity Phenix Fire Ins. Co., 342 Mo. 1, 111 S.W.2d 154; Duff v. Fire Assn. of Philadelphia, 129 Mo. 460, 30 S.W. 1034. (8) It does not appear by the terms of said alleged certificate, nor from the circumstances under which the same is alleged to have been issued, that the same was intended to be for the benefit of any person other than the Willems & Childers Construction Company, the same being addressed to no other person, firm or corporation. 17 C.J.S. 1127; Beattie Mfg. Co. v. Clark, 208 Mo. 89, 106 S.W. 29; St. Louis & Tenn. River Packet Co. v. Mo. Pac. Ry. Co., 35 Mo.App. 272; Gate City Natl. Bank v. Chick, 170 Mo.App. 343, 156 S.W. 743; John Horstmann Co. v. Waterman, 103 Wash. 18, 173 P. 733; Diggs v. Pacific Gas & Electric Co., 57 Cal.App. 57, 206 P. 765. (9) Said alleged certificate purports upon its face to have been executed on July 8, 1936, by one C. F. Crist, Jr., in the name of C. F. Crist & Company, as purported agents of this appellant and there is no evidence that C. F. Crist, Jr., or said C. F. Crist & Company was this appellant's agent or agents at such time, their former agency on this appellant's behalf having been evidenced by instruments of writing by the terms of which instruments such agency had expired prior to July 8, 1936. 2 C.J.S. 1151. (10) There is no evidence that the purported signature of said C. F. Crist, Jr., upon said alleged certificate is his genuine signature or that said certificate was ever issued by said C. F. Crist, Jr., or by said C. F. Crist & Company or otherwise. (11) There is no probative force to the two letters. (12) Such mere expression of opinion as to liability would have no probative effect. Hartwig-Dischinger Realty Co. v. Unemployment Comp. Comm., 350 Mo. 690, 168 S.W.2d 78; Gordon v. St. Paul Fire & Marine Ins. Co., 197 Mich. 226, 163 N.W. 956; Caldwell Bros. & Co. v. Coast Coal Co., 58 Wash. 461, 108 P. 1075. (13) The court erred, for reasons stated hereinafter, in admitting in evidence at the trial over this appellant's objections, certain papers which the witness Welch testified were copies of letters written by him, as vice president of defendant Morgan Roofing Company, to C. F. Crist & Company, said papers were not the best evidence and that no foundation had been laid for the introduction of such secondary evidence, i.e., that although notice had been given to this appellant to produce the original letters, of which said witness testified said papers were true copies, there was no evidence that any letter or letters of such description was or were or ever had been in the possession of this appellant. 22 C.J. 1041; 2 Jones, Commentaries on Evidence (3 Ed.), 1536; Birkbeck v. Tucker, 2 Hall's Reports 121. (14) The court erred in refusing to admit in evidence the thirty-seven policy forms for the reason that the same were and are explanatory of and were offered in evidence by this appellant as being explanatory of the words, "complete coverage within the limits stated for the type of insurance mentioned," as those words appear in the alleged certificate of insurance. Fogle v. Fidelity-Phenix Fire Ins. Co. of New York, 342 Mo. 1, 111 S.W.2d 154. (15) The statute authorizing penalization for vexatious refusal to pay is applicable only to a case in which the insurer is sued by the insured and is not applicable as against this appellant as a garnishee. R.S. 1939, sec. 6040.

William T. McCaffree, Edward Sweeney and Wm. J. B. Myres for respondents.

(1) The appellant is charged with the knowledge of the manner by which the assured's business was carried on at the time the Public Liability Policy was issued. It is therefore permissible to consider the situation of the parties and the manner in which the work was to be done in determining the intent of the parties and the meaning to be given the language used in said Public Liability Policy 3116. Restatement of the Law of Contracts, sec. 235; Kossmehl v. Millers Natl. Ins. Co. of Chicago, Ill., 185 S.W.2d 293; Dolph v. Maryland Casualty Co., 303 Mo. 534, 261 S.W. 330; St. Louis Union Trust Co. v. MacGovrn & Co., Inc., 297 Mo. 527, 249 S.W. 68. Velvet Freeze, Inc., v. Milk Wagon Drivers and Inside Dairy Employees Union Local No. 603, 177 S.W.2d 644. (2) The garnishee did not limit or qualify where such trade or business was to be conducted in Special Condition 4, but designated that the place or places where such trade or business was to be conducted was 623 Joplin Street, Joplin, Missouri, and "elsewhere in the State of Missouri." Under the second part of the agreement, the word "premises" is not used. Therefore, by the clearly expressed language above referred to this policy covered the injuries received by the plaintiffs. State ex rel. Mills Lumber Co. v. Trimble, 327 Mo. 899, 39 S.W.2d 355; Bankson v. Accident & Cas. Co. of Winterthur, Switzerland, 13 So.2d 398; Schmidt v. Utilities Ins. Co., 353 Mo. 213, 182 S.W.2d 181; Schorling v. United States Fidelity & Guar. Co., 188 S.W.2d 369. (3) Since the garnishee is relying wholly upon exclusion clause 5 in the policy to defeat coverage of the assured's business operations "elsewhere in the State of Missouri," the doctrine of contra proferentem should be strictly applied with unaccommodating vigor, and the policy contract should be construed to permit coverage by putting a common sense construction on the language used by the insurer. State ex rel. Mills Lumber Co. v. Trimble, 327 Mo. 899, 39 S.W.2d 355; Boillot v. Income Guaranty Co., 231 Mo.App. 531, 102 S.W.2d 132; Thrower v. Life & Casualty Ins. Co. of Tennessee, 141 S.W.2d 192. (4) The construction placed upon this policy by the appellant in contending that "elsewhere in the State of Missouri" has no meaning when placed under the heading "Where Such Trade or Business is Conducted" creates an ambiguity with the language used in the insuring clause, to-wit: "or while otherwise about the work of the assured, and caused by reason of and during the progress of the business operations," and said ambiguity should be construed most favorably for the assured and against the garnishee. Block v. United States Fidelity & Guar. Co., 316 Mo. 278, 290 S.W. 429; State ex rel. Mills Lumber Co. v. Trimble, 327 Mo. 899, 39 S.W.2d 355; Cleaver v. Central States Life Ins. Co., 346 Mo. 548, 142 S.W.2d 474; Thrower v. Life & Casualty Ins. Co. of Tennessee, 141 S.W.2d 192. (5) The general agency was clearly established by all the evidence. Block v. United States Fidelity & Guar. Co., 316 Mo. 278, 290 S.W. 429; Lanowah Inv. Co. v. John Hancock Mut. Life Ins. Co., 236 Mo.App. 1062, 162 S.W.2d 307; Bergerson v. General Ins. Co. of America of Seattle, 232 Mo.App. 549, 105...