Fenmode, Inc. v. Aetna Cas. & Sur. Co. of Hartford, Conn.

• Decision Date: 24 November 1942
• Docket Number: No. 21.,21.
• Court: Michigan Supreme Court
• Parties: FENMODE, Inc., v. AETNA CASUALTY & SURETY CO. OF HARTFORD, CONN.

303 Mich. 188

6 N.W.2d 479

FENMODE, Inc.,

v.AETNA CASUALTY & SURETY CO. OF HARTFORD, CONN.

No. 21.

Supreme Court of Michigan.

Nov. 24, 1942.

Action by Fenmode, Inc., a Michigan corporation, against Aetna Casualty & Surety Company of Hartford, Connecticut, a foreign corporation, on a water damage insurance policy. Judgment for defendant, and plaintiff appeals.

Affirmed.

Appeal from Circuit Court, Wayne County; Joseph A. Moynihan, Judge.

Before the Entire Bench.

Morris Lieberman, of Detroit (George Stone, of Detroit, of counsel), for plaintiff-appellant.

Gerald E. Schroeder, of Detroit, for defendant-appellee.

BUSHNELL, Justice.

Plaintiff, Fenmode, Inc., is the owner and operator of a ladies' ready-to-wear store at 6306 Woodward Avenue, Detroit, and defendant, Antna Casualty & Surety Company, is its insurer on a ‘water damage’ policy. This action arose because of damage to plaintiff's stock of merchandise in its basement by reason of a heavy rainstorm during the night of June 12, 1941.

The policy provides coverage-‘against all direct loss and damage caused solely by the accidental discharge, leakage or overflow of water or steam from within the following source or sources: Plumbing systems (not including any sprinkler system), plumbing tanks (for the storage of water for the supply of the plumbing system), heating system, elevator tanks and cylinders, stand pipes for fire hose, industrial or domestic appliances, refrigerating systems, air conditioning systems, and rain or show admitted directly to the interior of the building through defective roofs, leaders or spouting, or by open or defective doors, windows, show windows, skylights, transoms or ventilators, except as herein provided, * * *.’

Among the ‘hazards not covered’ is loss or damage caused directly or indirectly by-‘floods, inundation, backing up of sewers or drains, or the influx of tide, rising or surface waters.’

The decision in this case is controlled by a determination of the source of the water in the basement and whether that source is within the coverage of the policy or the exception thereto.

Plaintiff claims the damage was caused by water which entered the premises directly from a defective spout through an air duct, through a partly open window and through a defective back door. Defendant claims this damage was caused by surface waters which flowed under the defective door.

About a week previous to the rainstorm of June 12th, plaintiff's president and general manager, Joseph H. Sake, noticed that a downspout at the rear of the store was broken and notified plaintiff's landlord to come and repair it, but this was not done. After Sake first had noticed the broken condition of the downspout there was a heavy rainstorm on June 7th, and he at that time had put pieces of carpet padding against the back door to prevent water from getting into the main part of the store.

When Sake arrived at the store on the morning after the storm of June 12th, he found the spout torn off and hanging on a hook, that a steel fenestra window under this spout was not tightly closed, that there was dampness in the rear of the store near the back door, and that there was two feet of water in the basement. When the air conditioning unit, which has an air intake in the fenestra window, failed to operate, inspection showed its machinery rusty and wet. Sake also testified that the lot in the rear of the store, which was covered with cinders, was wet and had standing puddles of water on it.

Defendant on cross-examination introduced in evidence a statement signed by Sake the day after the storm, in which he said:

‘We had a heavy rainstorm today. It had been raining several hours when I opened up this morning. I noticed...