Courtney v. Ocean Accident & Guaranty Corporation

• Decision Date: 04 September 1940
• Docket Number: 36558
• Citation: 142 S.W.2d 858,346 Mo. 703
• Parties: Mary Courtney, Defendant in Error, v. The Ocean Accident & Guaranty Corporation, Garnishee, Plaintiff in Error
• Court: Missouri Supreme Court

142 S.W.2d 858

346 Mo. 703

Mary Courtney, Defendant in Error, v. The Ocean Accident & Guaranty Corporation, Garnishee, Plaintiff in Error

No. 36558

Supreme Court of Missouri

September 4, 1940

Rehearing Denied August 16, 1940.

Motion to Transfer to Banc Denied September 4, 1940.

Appeal from Circuit Court of City of St. Louis; Hon. Michael J Scott, Judge. Opinion filed at May Term, 1940, June 28 1940; motion for rehearing overruled August 16, 1940; motion to transfer to Court en Banc filed, motion overruled at September Term, September 4, 1940.

Reversed.

Joseph N. Hassett and Ernest E. Baker for plaintiff in error.

Plaintiff's evidence all shows, as a matter of law, that the repairs being made by Edward Courtney were repairs on account of fire damage, and the court should have declared, as a matter of law, that these were extraordinary repairs and that the policy of insurance did not insure Warren R. Sprague and March C. Sprague against loss due to bodily injuries sustained while extraordinary repairs were being made. Wendorff v. Mo. State Life Ins. Co., 1 S.W.2d 99; State ex rel. Bowdon v. Allen, 85 S.W.2d 63; Nixon v. Gammon, 229 S.W. 75; Home Mixture Guano Co. v. Ocean Acc. & Guar. Corp., 176 F. 600.

Schaefer & Goldman and Edwin C. Luedde for defendant in error.

(1) The evidence in this case made the question whether the deceased was engaged in making extraordinary repairs a question of fact, to be determined by the jury, and the court properly declined to give the peremptory instructions requested by the defendant. Gay v. Tielkemeyer, 64 Mo.App. 112; Carp v. Queen Ins. Co., 104 Mo.App. 502, 79 S.W. 757; Chouquette v. Barada, 28 Mo. 491; Young v. Stephens, 66 Mo.App. 222; Kansas City v. Ford Hein Brewing Co., 98 Mo.App. 590, 73 S.W. 302; Hibernia Bank & Trust Co. v. Boyd, 164 Tenn. 376, 48 S.W.2d 1084; La. Oil Refining Corp. v. Halton, 188 Ark. 117, 64 S.W.2d 98; Dixon v. Cassels Co., 34 Ga.App. 478, 130 S.E. 75; Jefferson v. Kennedy, 41 Ga.App. 672, 154 S.E. 371; Daniel v. Beutell, 31 Ga.App. 210, 120 S.E. 448; Fenner v. Amer. Surety Co., 97 S.W.2d 741; Anderson v. Frischkorn Real Estate Co., 253 Mich. 668, 235 N.W. 894; Kasch v. Farmers Gin Co., 3 S.W.2d 72; Brundrett v. Rosoff, 92 Conn. 698, 104 A. 67; Anderson v. Eischen, 16 F.2d 254; Telluride Power Co. v. Bruneau, 41 Utah 4, 125 P. 399; M.-K.-T. Ry. v. Connelly, 14 Tex. Civ. App. 529, 39 S.W. 145; Brody v. Chittenden, 106 Iowa 340, 76 N.W. 740. (2) Where the matter to be inquired into, though established by undisputed evidence, is such that reasonable minds might differ about it, the question is not one of law, but of fact, to be submitted to the jury. Where, though the facts are undisputed, the inferences to be drawn therefrom might differ, the issue is one of fact. Lehnerts v. Otis Elevator Co., 256 S.W. 819; Young v. Wheelock, 333 Mo. 992, 64 S.W.2d 950; Parrent v. Mobile & Ohio Ry., 334 Mo. 1202, 70 S.W.2d 1068; Carp v. Queen Ins. Co., 105 Mo.App. 502, 79 S.W. 757.

Bradley, C. Hyde and Dalton, CC., concur.

OPINION

BRADLEY

This is a garnishment proceeding resulting in a judgment for $ 8075.80 against the garnishee, and brought up by writ of error.

Mary Courtney brought suit against Warren R. Sprague, March C Sprague (husband and wife) and Wallace M. Smith, for the alleged wrongful death of her husband, Edward Courtney, who was killed when an elevator, upon which he was standing, fell. The suit resulted in a judgment against the Spragues for $ 8,000, and the costs amount to $ 75.80. The Spragues had a liability policy with the Ocean Accident and Guaranty Corporation, garnishee here, which they claimed covered the accident, but the garnishee claimed that the policy did not cover the case, and refused to defend the suit or pay the judgment. After an execution against the Spragues was returned nulla bona, these garnishment proceedings were commenced resulting in the judgment against garnishee as stated.

The Spragues owned a two story brick building, 29 by 155 feet, at 1901 Locust street, St. Louis. There was no basement. The first floor was concrete and the second wood. In the rear (north end) of the building and within 5 or 6 feet of the wall was a freight elevator or lift. Between the first and second floor there was no housing enclosing the elevator, but on the second floor there were board walls, extending up about 5 feet, on the north, east and south sides, to prevent stepping into the opening, and a top was over the board walls on the second floor. On the west side, second floor, was a gate that lifted. Witness Peebles, an electrical engineer, described the elevator thus:

"The elevator is a Sheppard-Lewis stacker or portable hoist, which is a device that has a platform mounted on wheels, whereby to move it around from place to place. There is a hinged arm that backs an upright, and that upright carries the shive or operating wheel around which the hoisting cable travels, and the base of the upright column has affixed to it a motor, gearing, and winding drum, and electrical controller. The arrangement is that the device will stand independently on any flat surface, irrespective of any building or structure, and is used primarily in warehouses where such articles as bales of cotton are stacked, so that the bales may be elevated over other bales, and as the warehouse becomes loaded by the stacking of bales, the hoist is moved to a more convenient position."

While this elevator was a portable, as witness Peebles said, it was stationary in this building. Peebles said that "it was sunk in a pit" in the concrete floor.

On the night of March 19, 1935, there was a fire in the rear of the Sprague building that damaged the elevator and the building. Wallace M. Smith had the contract to make what we may call the carpenterwork repairs, and Courtney (the deceased), employed by Smith, was making these repairs when the elevator fell. Smith testified:

"On Monday afternoon, April 22, 1935, Mr. Courtney was working around the shaft on the second floor. I was on the first floor and wanted to get to the second floor, and I tried to operate the elevator and it was stuck. So I looked up and saw that there was a board in between the elevator platform and the joists around the elevator, so I walked to the second floor and told Courtney that 'we must take that out and release the elevator.' Courtney loosened the upper end of the board and the other end wouldn't come so easily, so he stepped on the elevator and started to shake it, and as he did, it (the board) released and the elevator dropped. . . . At the time I asked Mr. Courtney to remove the board that was binding the elevator, Mr. Courtney was building the sides of this covering over the second floor at the elevator. By that I mean the upright portion there on the north side of the second floor and on the east side of the second floor. The boards there are what they call one-by-six No. 2 flooring."

Garnishee, in its brief, gives an explanation of what happened when Smith "tried to operate" the elevator. "The elevator machinery, in lifting and lowering the elevator, wound and unwound the cable around a drum or winch; when the elevator cage became jammed at the second floor of the building against the board which had been nailed there by Mr. Courtney, different persons, in attempting to use this elevator for service, had pulled the rope (Smith is the only one who pulled the rope while the board was in, so far as appears in the record) in an effort to lower the elevator from the second floor to the first floor, and when the elevator did not descend, the mechanism of the elevator in unwinding the cable from the winch left the cable attached to the platform of the elevator loose, so that when Mr. Courtney did release the board which had the elevator platform jammed, the platform fell."

Garnishee contends that the repairs being made on the building when the elevator fell were, as a matter of law, extraordinary repairs, and that under the terms of the policy there was no liability. At the close of plaintiff's case and at the close of the whole case garnishee requested a directed verdict in its favor, but this was refused. The policy provision relied on by garnishee is as follows:

"Unless otherwise specifically written in or endorsed on this policy, said policy shall not cover . . . bodily injuries or death caused by the construction, reconstruction, demolition or extraordinary repair of any elevator or hoisting device, or the building or structure within which it is contained; but privilege is granted under this policy to make such ordinary alterations and repairs as are necessary to the care of any elevator covered herein and its maintenance in good condition, including the renewal of existing mechanical equipment, provided that such elevator shall not be used for service while such work is being done." (Italics ours.)

Smith, by whom Courtney was employed, had nothing to do with repairing the elevator as such. Repair of the elevator had been completed some ten days before Courtney was injured, and the work he was doing at the time was a part of the repair work on the building (Smith's job) and the decisive question is: Were the repairs to the building extraordinary? Mrs. Courtney, plaintiff below, says that the question was for the jury, and the garnishee says not. The damage, as a fire insurance loss, was submitted at $ 4700, but was adjusted for $ 3716.20. It is claimed, however, that the $ 3716.20 "included items of repair which were not actually done." Smith, before commencing repair of the building, submitted to the Spragues the following estimate:

"St Louis, Mo., March 25, 1935.

"Mr. Warren Sprague, 1901 Locust St., St. Louis, Mo.

"Dear Sir: I give you herewith an estimate of the work to...