Cross v. Zurich General Accident & Liability Ins. Co.
| Decision Date | 08 November 1950 |
| Docket Number | No. 10124.,10124. |
| Parties | CROSS et al. v. ZURICH GENERAL ACCIDENT & LIABILITY INS. CO., Limited. |
| Court | U.S. Court of Appeals — Seventh Circuit |
A. Charles Lawrence, Max F. Goldberg, Levy, Goldberg & Lawrence, Chicago, Ill., for appellants. Ernest Greenberger, Chicago, Ill., of counsel.
L. H. Vogel, George C. Bunge, R. C. Vogel, Vogel & Bunge, Chicago, Ill., for appellee.
Before DUFFY, FINNEGAN and LINDLEY, Circuit Judges.
Plaintiff Clarence J. Cross has been engaged in the business of cleaning the exterior of buildings since 1927. The plaintiff partnership has been engaged in the same business since 1942. Plaintiffs have had wide experience in cleaning the exterior of buildings located in Chicago's Loop and elsewhere in that city.
On August 22, 1947, defendants issued to plaintiff a public liability policy of insurance wherein it agreed "to pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages because of injury to * * * property * * * caused by accidents which occur during the policy period * * *."
On September 15, 1947, plaintiffs entered into a contract to clean the exterior of the Le Moyne Building at 180 North Wabash Avenue, Chicago. On the following day, by a specific endorsement, the defendant extended the public liability policy hereinbefore described to cover the operations by plaintiffs on the Le Moyne Building.
Plaintiffs attempted to clean the exterior of the building with a solution of muriatic acid, but because of the accumulation of grime for a period of some ten years, this method was not effective. Plaintiffs then obtained permission from the managers of the building to use a solution compounded of one cup of hydrofluoric acid to a five gallon bucket of muriatic acid solution. This solution was applied to the masonry with brushes handled by men who worked on scaffolds. The cleaning solution was then washed off the masonry with a jet of wet steam. The work was customarily done at night.
Hydrofluoric acid has the property of marking or etching glass. To avoid acid damage to windows adjoining the area being cleaned plaintiffs adopted the following protective procedure. Before and during the application of the solution to the walls, and while the solution was being washed off, a jet of steam water, or wet steam, was played upon such windows. Nevertheless, some of the glass in the windows of the Le Moyne Building was damaged by the solution which had been used, and claims for damages were received by the plaintiffs from some of the tenants, and from the agents of the building. One claim was from Horder and Company which claimed damage to merchandise inside the building where the water and acid mixture had entered the store because the windows were not properly sealed.
The testimony discloses that on several occasions buckets of acid solution were spilled when high winds swung and twisted the suspended scaffolds, and that the spillage splashed against the sides and windows of the building. However, considering the testimony in the light most favorable to defendant, we may assume that the greater part of the damage to the windows occurred when the solution was being applied to or washed from the walls of the building.
Defendant was notified of the claims and was requested to undertake their defense or settlement. Defendant disclaimed liability, except for the Horder claim, stating that the damage was not occasioned by an accident. Thereafter plaintiffs brought this action for declaratory judgment.
The district court held that the damage to the windows which gave rise to the claims against the plaintiffs was not "caused by accidents." The basis for such conclusion was that the plaintiffs could have masked the windows in the building by covering them with grease or heavy paper, that the use by plaintiffs of hydrofluoric acid on the building was deliberate and intentional and, therefore, the result of its use was not unforeseen, unexpected, or unusual. The court said it did not think what plaintiffs did to guard against acid damage "was adequate." It is apparent that the trial court applied the test for negligence. We do not think that is a proper test when considering what constitutes an accident under a public liability insurance policy containing the clause hereinbefore quoted.
There is no suggestion in this case that the plaintiffs intentionally and willfully damaged the glass in the windows. Furthermore, there was before the court the evidence of four witnesses, one of whom was entirely disinterested and had nearly 30 years' experience in cleaning buildings, that the use of steam with hydrofluoric...
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