Ebert v. Millers Mut. Fire Ins. Co.

• Citation: 220 Md. 602,155 A.2d 484
• Decision Date: 18 November 1959
• Docket Number: No. 27,27
• Parties: Henry G. EBERT et al., t/a George Ebert & Sons, v. MILLERS MUTUAL FIRE INSURANCE COMPANY.
• Court: Court of Appeals of Maryland

Page 602

220 Md. 602

155 A.2d 484

Henry G. EBERT et al., t/a George Ebert & Sons, v. MILLERS MUTUAL FIRE INSURANCE COMPANY.

No. 27.

Court of Appeals of Maryland.

Nov. 18, 1959.

Marvin Ellin, Baltimore, for appellants.

Max Sokol and Melvin J. Sykes, Baltimore (Dickerson, Nice & Sokol, Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

BRUNE, Chief Judge.

The plaintiffs-appellants, trading as George Ebert & Sons, the Eberts, appeal from a judgment N.O.V. for the defendant-appellee, Millers Mutual Fire Insurance Co., the Insurance Company, in a suit on a fire insurance policy. The policy covered loss by fire or lightning and the claim in controversy on this appeal is for damage by lightning to a wall which, together with other structures, enclosed the lot upon which stands the building covered by the policy now in controversy. The principal question is whether the wall was or was not covered by this policy. The trial court held that it was not.

The Eberts own a rather large, irregularly shaped lot known as No. 3703 East Baltimore Street in the City of Baltimore. It has a frontage of about 128 feet on the south side of Baltimore Street and an overall depth of about 143 feet. Its southern line is about 213 feet in length. The lot may be roughly described as consisting of two rectangles, the larger of which, including the whole Baltimore Street frontage, is about 128 feet by 143 feet, and the smaller of which with dimensions of 98 feet (east and west) by 32 feet (north and south) might be described as a pocket. It adjoins the southeast corner of the larger rectangle and the southern line of the pocket is an extension of the southern line of the larger rectangle.

There are four buildings on the lot, all of which are in the larger rectangle. The largest one, herein called 'Building A', is a one-story structure built by the Eberts, and stands in the extreme northwest corner. It fronts 50 feet on Baltimore Street and has a depth of 75 feet. The three smaller buildings, herein called 'Buildings B, C and D', respectively, all back on the eastern boundary of the lot. Building B is on the south side of Baltimore Street in the extreme northeast corner of the lot. Building C adjoins B, and D adjoins C. They have a combined depth of about 93 feet south from Baltimore Street. The only entrance to the lot is through a gate or opening in a wall or fence on Baltimore Street between Buildings A and B.

In Building A the appellants carry on a sheet metal, plumbing and ventilating business. Buildings B, C and D are used for storage or garage purposes. The appellants bought the lot in 1952, at which time only buildings B, C and D were on it. There was then a wooden fence, which, together with walls or buildings on the lot or on adjacent lots, enclosed the entire premises. The appellants then constructed Building A and replaced the wooden fence with a cement block wall. This wall does not touch Building A. It begins at the south end of a building on an adjoining lot which extends about 34 feet south from Building A, runs south about 34 feet to the south line of the Eberts' lot, then east the entire length of the south boundary, then around the pocket, and finally to the south wall of Building D. With this cement block wall and other structures, the Eberts' lot is entirely enclosed.

The Eberts took out three separate policies of insurance against damage by fire or lightning with the appellee Insurance Company. The first, No. B-140687, covered Buildings B, C and D for an aggregate amount of $5,000; the second, No. 126088, in the amount of $4,000 covered furniture, fixtures and stock in trade contained in Building A or additions thereto; and the third, No. B-140709, covered Building A for $16,000. Each policy contained an 80% coinsurance clause. There was attached to each of the policies a printed form known as 'Form 804 B' which set forth the terms of the coverages. These coverages were referred to in the insuring clause on page 1 of each policy, along with the description of the property covered. 'Coverage A' was made applicable under the policies on the buildings; 'Coverages B and C' were made applicable under the policy covering furniture, fixtures and stock in trade.

On September 10, 1957, a portion of the wall along the south side of the lot, at or near the southeast corner, and at least partly along the pocket, collapsed during a severe storm; and some of the stock in trade at or near the break was also damaged by the collapsing wall.

The Eberts brought suit originally in November, 1957, on the first and third policies seeking to recover for damage to the wall. They filed an amended declaration in April, 1958, seeking by the first count to recover on the third policy, covering Building A (but omitting any claim on the first policy covering Buildings B, C and D), for damage to the wall, and seeking by the second count to recover under the second policy for damage to personal property.

At the trial several questions were presented: (a) whether the loss was due to lightning or not; (b) whether the wall was covered by the policy on Building A; (c) whether the stock in trade in the yard near the collapsed wall was covered by the policy on personal property; and (d) sundry questions as to costs and values and the operation of the 80% co-insurance clause. At the conclusion of the testimony six issues were submitted to the jury. The first was whether or not lightning caused the wall to fall, and the answer of the jury was 'Yes'. That question is not sought to be reopened on this appeal. The other issues all related to costs, values and damages, and no issue is raised on the appeal with regard to these matters or to the arithmetic of the operation of the co-insurance clause, which was worked out by the trial judge on the basis of the jury's findings on this group of issues.

The trial court reserved the questions of coverage for consideration by the court, not by the jury. Both parties fully acquiesced in this at the time of the trial. Judgment nisi was entered for the plaintiffs for the sum of $5,025.27 upon the return of the jury's answers to the issues submitted. This was the maximum amount of damages to which the plaintiffs might be entitled if the questions of coverage were finally resolved in their favor. The defendants, who had filed a motion for a directed verdict which had been overruled, filed a motion for judgment N.O.V. or, in the alternative, for a new trial. The amount of the judgment nisi was a composite of $1,577 under the policy on personal property and $3,448.27 under the policy on Building A. The trial court denied the motion for judgment N.O.V. as to damages to personal property and granted it as to damages under the policy on Building A. The Insurance Company paid the $1,577 judgment with respect to personal property, so that no question as to its correctness is presented for review, and the Eberts' appeal brings up only the judgment for the Insurance Company on the Building A policy.

The appellants rely upon two provisions of Form 804 B included in the Building A policy. Both appear in the same paragraph, which reads as follows:

'Coverage A: Building(s) or Structure(s)--Where the term 'buildings' is used except as otherwise excluded, it shall be understood to include additions and extensions thereto, adjoining and communicating; permanent fixtures of the building, including machinery pertaining to the service of the building and refrigerating apparatus and equipment, when a part of the realty; signs, flag poles and fences; also awnings, storm and screen doors and windows, whether in position or stored on the premises. The term 'machinery' as used in this paragraph does not include machinery, apparatus or appurtenances for manufacturing purposes.'

The appellants rely upon the 'additions and extensions' clause and upon the inclusion of 'fences' within the structures covered by the term 'building'.

The trial court rejected the 'additions and extensions' contention, and we agree. There was some testimony to the effect that the wall was built in a certain way with the purpose in mind of its being used at some future time as part of an extension of Building A. It is perfectly clear that it was not so used. There were not, indeed, any plans for its immediate use as a part of any building nor was there any showing even of any plans for an early extension of or addition to Building A. The wall was simply an enclosing wall at the time of the loss. The one case cited by the appellants in support of this contention is Ideal Pump & Mfg. Co. v. American Central Insurance Co., 167 Mo.App. 566, 152 S.W. 408, holding certain non-contiguous sheds to be within the terms of a policy on a building which also covered 'additions, adjoining and communicating' with the main building. That case presents a quite different state of facts from ours. Here we have a remote wall, not a building nor a part of any building. For cases reaching an opposite result to that of the Ideal Pump & Mfg. Co. case even in the case of actual buildings, see Pilgrim Laundry & Dry Cleaning Co. v. Federal Ins. Co., 4 Cir., 1944, 140 F.2d 191, Melder v. Great American Ins. Co., La.App., 9 So.2d 243, and Agnew v. Sun Insurance Office, 167 Wis. 456, 167 N.W. 829. We think that the facts of the instant case are stronger than the facts of any of the cases just cited as showing that the structure damaged or destroyed was not an extension of or addition to Building A.

The next question is whether or not the concrete block enclosing wall was a 'fence' within the meaning of the Building A policy. The appellants contend that the definition of 'fence' includes a wall which serves as an enclosure or barrier along the boundary of a field, park or yard which it is desired to defend from intruders. See the Oxford English Dictionary, Vol. 4. See also Funk & Wagnall's New Standard Dictionary, ...