Demun Estate Corp. v. Frankfort General Insurance Co.
| Decision Date | 18 July 1916 |
| Citation | 187 S.W. 1124,196 Mo.App. 1 |
| Parties | DeMUN ESTATE CORPORATION, Respondent, v. FRANKFORT GENERAL INSURANCE COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Lincoln Circuit Court.--Hon. Edgar B. Woolfolk, Judge.
AFFIRMED.
Judgment affirmed.
Holland Rutledge & Lashly for appellant.
L. L Leonard, R. H. Norton and Grover C. Sibley for respondent.
(1) The evidence conclusively showed that respondent was not in "actual occupation" of any part of the premises and hence there was no violation of the conditions of the rider. 3 Joyce on Insurance, p. 2213; Craig v. Sp'g. F. & M. Ins. Co., 34 Mo.App. 484. (2) "Control" (or "occupation") of the roof and walls of the building, when all habitable parts were leased, and was not "control" (or "occupation") "of the property," within a fair interpretation of the rider and policy. Still v. Conn. F. Ins. Co., 172 S.W. 626; Herman v. Adriatic Co., 85 N.Y. 162; Harrington v. Fitch Mutual, 124 Mass. 126; Carter v. Humboldt Co., 17 Iowa 456. (3) Counsel errs in arguing that "if respondent were not in possession (occupation?) and control of any portion of the premises at the time the cornice in question fell, respondent would not be liable to the injured parties for the fall thereof." By the contract of Sept. 13, 1910, appellant is estopped from making this contention. Furthermore, a lessor is liable in law for damages from an existing nuisance and for this reason respondent was liable for these damages due to his neglect and chargeable to him by law. Felhauer v. St. Louis, 178 Mo. 646; Mitchell v. Brady, 124 Ky. 411; Glenn v. Hill, 210 Mo. 298; Stoetzels v. Swearingen, 90 Mo.App. 593; Kaiser v. Washburn, 55 A.D. 161. (4) The fact that the DeMun estate was incorporated in the latter part of 1909 is of no importance whatever. The same interests remained, represented by the same agents and under the same management. Wrapping about an individual a corporate charter does not change the identity of the individual. Bradshaw v. Halpin, 180 Mo. 666. (5) Occupation and control of the roof of a building by the owner is not in violation of a policy issued "with the understanding that the assured is the owner of the property but is not in occupation or control of it," i. e., of the property. If in anywise possible, the policy will be construed so as to effectuate the insurance. La Farce v. Ins. Co., 43 Mo.App. 519; Carr v. Hibernia Ins. Co., 2 Mo.App. 466; Reun v. Supreme Lodge, 83 Mo.App. 442; Sims v. State Ins. Co., 47 Mo. 54; Alt. Est. v. Casualty Co., 149 S.W. 1049; Miller v. Mo. Ins. Co., 153 S.W. 1080 (Mo. 1913); Harrington v. Fitchburg Ins. Co., 124 Mass. 126. (6) The falling of a part of a building overhanging a public thoroughfare is prima-facie negligence on the part of those responsible in law for its safe maintenance. Tiffany, Landlord & Tenant, pp. 692, 693; Muellen v. St. John, 57 N.Y. 567; Railroad v. Hopkins, 54 Ark. 213; McNulty v. Ludwig, 125 A.D. 292; Israel v. Unit. Rys. Co., 155 S.W. 1092; McAdam v. Street Ry., 174 Mo.App. 5; Blounts v. Dodd, 109 Mo. 69-74; Mitchell v. Brady, 124 Ky. 416. (7) The terms of the contract of insurance are strictly construed against the insurer. Walton v. Phoenix Ins. Co., 162 Mo.App. 316; La Farce v. Williams Ins. Co., 43 Mo.App. 530; Starke v. Insurance Co., 176 Mo.App. 581; Mitchell v. Accident Ins. Co., 179 Mo.App. 5; Renn v. Ins. Co., 83 Mo.App. 449.
--This is a suit on a policy of insurance. Plaintiff recovered and defendant prosecutes the appeal.
The insurance contract is what is known as a landlord's contingent policy. It vouchsafes indemnity to the owner of the building, who is neither in the occupation nor control of it, for such expenditures as he may make in liquidation of claims arising on account of personal injuries received because of defects in the building or the neglect of the owner which are chargeable to him at law. The building on which the policy covers is situate on the west side of North Sixth street in St. Louis, between Olive and Pine, numbered 207, 209, 211, 213, and 215. It consists of three stories, is constructed of brick, and is known as the Mona hotel. It is an old building, having been erected about 1843, and was occupied first by DeMun as a residence. About 1855, it was converted into business property, but during all the time has continued as the property of the DeMun estate--that is, it was owned by the heirs of Isabel DeMun. The policy was originally issued to Julius S. Walsh, agent for himself and the other heirs, on the 20th day of December, 1909, for one year--that is, to December 20, 1910. In the meantime, the interests of all of the heirs in the property were incorporated in the name of DeMun Estate Corporation, the plaintiff, and on January 28, 1910 the change of the name of the owner was indorsed on the policy as follows:
"It is hereby understood and agreed that the name of the assured in this policy is changed to read DeMun Estate Corporation, and ceasing to cover in the name of Julius S. Walsh, agent for himself and other owners as originally written."
At the time the policy was issued, and, indeed, at all times relevant to the questions for consideration here, the building was in possession of tenants. William J. Milford was the lessee under a lease of date June 29, 1908, for a period of four years of all of the second and third floors of the building and also the storerooms numbered 207, 209 North Sixth street--that is, on the ground floor, in which Milford conducted a hotel, the Mona House, and restaurant. Moreover, it appears Milford had possession of a small basement under the building as well. Joseph Fireside & Company were the lessees under a lease of date August 12, 1907, for a period of five years, of storerooms numbered 211, 213 North Sixth street, on the ground floor, while one Joyce was a tenant and occupied the remaining storeroom--that is, number 215 North Sixth street--as a dramshop. With the property thus occupied, the policy was issued to the heirs of the DeMun estate, Julius S. Walsh, agent, and continued in force under the change of name after the incorporation of the estate as above indicated.
On a quiet evening in June, 1910, a considerable portion of the cornice on the front of the building fell from position into the street and injured several pedestrians. Plaintiff expended about $ 3700 in settlement of the claims of persons so injured, preferred against it, and sues upon the policy for indemnity.
It is argued the subject-matter in suit is not within the terms of the policy, for that plaintiff owner was in possession and control of the roof of the building and the cornice which fell, whereas the policy stipulates indemnity only in those cases where the insured is not in such possession and control. The question thus made is to be determined by a construction of the following provision of the policy:
"This policy is issued with the understanding that the assured is the owner of the property but is not in occupation or control of it, the actual occupation or control being vested in a lessee or lessees, and it is hereby agreed that the company shall not be responsible for any loss, excepting such as may be occasioned by some fault or neglect on the part of the assured, or may be chargeable to him by law, notwithstanding the fact that the property is leased or beyond his control, and this policy is accepted by the assured accordingly."
We regard the argument as more specious than sound, in that it reckons with the words "occupation or control," contained in the policy apart from the entire property as tenements, and seeks to confine them to a mere infinitesimal portion of the subject-matter insured--that is, to the roof, or, rather, the cornice which fell to the ground and injured the several pedestrians. Moreover, the argument proceeds in the view that the word "occupation" is synonymous with the word "possession," which is in no wise true, and as if possession intends, in part at least, a constructive possession which draws to it the right of control touching the cornice. It appears that every part of the building--that is the habitable portions--was let to and occupied by tenants at the time the policy was issued and throughout the whole period involved here. This being true, no portion of it was in the "occupation or control" of the owner according to the intendment of the policy contract, when interpreted under the principle of law relevant to insurance matters. No one can doubt that the language employed in an insurance policy is to be construed in aid of the insurance rather than to the end of defeating it, for, indeed, the insurance vouchsafed is the very object and purpose of the contract. [See Stix v. Travelers' Indemnity Co., 175 Mo.App. 171, 177, 157 S.W. 870.] Moreover, the policy is to be given effect, if permissible, as if it was intended to cover and include the subject of the insurance for which the premium was paid, rather than to aid an escape from liability thereon. [See Still v. Connecticut Fire Ins. Co., 185 Mo.App. 550, 172 S.W. 625.]
The provision above copied proceeds, "This policy is issued with the understanding that the insured is the owner of the property, but is not in occupation or control of it, the actual occupation or control being vested in a lessee or lessees." (The italics are our own.) In so far as these words are concerned, they relate to the property and not merely to the roof or the cornice. It is certain that this property, considered as the subject-matter insured, was not in the occupation or control of the owner, for it was under lease and occupied by the several tenants, and, indeed, the leases stipulate that it was...
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