Goedecke v. Zurich General Acc. & Liability Ins. Co.

• Decision Date: 05 June 1928
• Docket Number: No. 19782.,19782.
• Citation: 7 S.W.2d 309
• Court: Missouri Court of Appeals
• Parties: GOEDECKE v. ZURICH GENERAL ACCIDENT & LIABILITY INS. CO., LIMITED, OF ZURICH, SWITZERLAND.

7 S.W.2d 309

GOEDECKE v. ZURICH GENERAL ACCIDENT & LIABILITY INS. CO., LIMITED, OF ZURICH, SWITZERLAND.

No. 19782.

St. Louis Court of Appeals. Missouri.

June 5, 1928.

Appeal from St. Louis Circuit Court; Wm. H. Killoren, Judge.

"Not to be officially published."

Action by Henry Goedecke, doing business as the Henry Goedecke Wrecking Company, against the Zurich General Accident & Liability Insurance Company, Limited, of Zurich, Switzerland. Judgment for plaintiff, and, from an order granting defendant's motion for a new trial, plaintiff appeals, and defendant moves to dismiss the appeal. Motion to dismiss the appeal overruled, order sustaining motion for a new trial affirmed, and cause remanded.

Leahy, Saunders & Walther and J. L. London, all of St. Louis, for appellant.

W. E. Moser and Hensley, Allen & Marsalek, all of St. Louis, for respondent.

BENNICK, C.

This is an action upon a policy of liability insurance. Upon a trial to a jury, a verdict was returned in favor of plaintiff, in the aggregate sum of $2,168, and a judgment in conformity therewith was duly rendered. Subsequently, defendant's motion for a new trial was sustained by the court upon the ground that the verdict had been against the weight of the evidence, and from such order of the court plaintiff has appealed.

It appears that plaintiff, under the style of the Henry Goedecke Wrecking Company, was engaged in the business of wrecking and demolishing buildings; and that, in 1922, he had a contract to wreck the St. James Hotel, located at the southwest corner of Broadway and Walnut street, in the city of St. Louis, together with a four-story building at 514 Walnut street, which had been used as an annex to the hotel. Before undertaking such work, plaintiff, on January 12, 1922, obtained a policy of employer's liability insurance from defendant, the material portions of which, so far as concerns the issues presented on this appeal, were as follows:

"In consideration of the premium herein provided, and of the warranties herein made, the Zurich General Accident & Liability Insurance Company * * * does hereby agree with the assured respecting bodily injuries or death at any time resulting therefrom * * * accidentally suffered or alleged to have been suffered during the policy period defined in special condition 6, by any employee or employees of the assured while at the place designated in special condition 4, by reason of the work described in said special condition 4, * * * to indemnify the assured against loss from the liability imposed by law upon the assured for damages. * * *

"And, provided further, that this policy is made and accepted subject to the general conditions, special conditions, and warranties hereinafter set forth * * * and compliance with such general conditions, special conditions, and warranties hereinafter set forth * * * and compliance with such general conditions, special conditions, and warranties shall be a condition precedent to the right of a recovery hereunder.

* * * * * *

"Special Conditions.

* * * * * *

"4. A complete description of the work covered by this policy, the places where such work is to be done, the estimated remuneration of the employees engaged in such work for the period of this policy, the premium rate or rates, and the deposit premium are as follows:

"Description of Work Covered by this Policy.

"Wrecking—not marine (no blasting). Masonry —not otherwise classified (no blasting).

"Places where such work is to be done.

"St. James Hotel, southwest corner Broadway and Walnut street, and No. 514 Walnut street, St. Louis, Mo., and elsewhere in the state of Missouri.

* * * * * *

"Warranties.

* * * * * *

"It is hereby understood and agreed that on all the wrecking or demolition of buildings on which the assured may undertake operations, during the period of this policy, the assured shall notify the company before beginning such operations in order that an inspection of said operations may be made and the company shall not be liable for any accident occurring by reason of the wrecking or demolition of any buildings, unless and until such inspection has been made and the risk accepted by the company in writing."

After an inspection of the buildings specified in the policy had been made by the defendant, the work of demolishing them was begun by plaintiff on January 18th, and was continued until February 7th, when a fire occurred in the Anderson Studio, situated in the rear of 514 Walnut street, and adjacent to an intervening garage. After the fire, the studio building was promptly repaired and a new roof put on, leaving, however, a wall of the studio, as originally constructed, extending 10 or 12 feet above the new roof. On March 23d, plaintiff was employed to remove some 8 feet of the wall in question, and while engaged in the performance of such work, on March 25th, the roof of the studio gave way and several of plaintiff's employees were injured.

It would clearly seem that no notice had been given by plaintiff to defendant before the task of wrecking the wall of the Anderson Studio building was undertaken, and that defendant had not inspected such premises, nor had it accepted the risk, in writing or otherwise, as provided for in the policy. Consequently, upon receiving from plaintiff a notice of the occurrence, defendant disclaimed any liability under its policy for the accident in question, and, as a result, plaintiff was compelled to adjust the claims out of his own resources, paying out the sum of $1,950 by way of settlements and expenses.

It will suffice to say that there was evidence for plaintiff that the Anderson Studio building was a part of 514 Walnut street, while the evidence on behalf of defendant tended to show that such premises were properly known as 513 Elm street. A memorandum was filed by the learned trial judge, stating that, in his view, the weight of the evidence was with defendant on this issue, and, for such reason, he sustained the motion for a new trial upon the ground heretofore indicated.

There will be no necessity for a discussion of the contents of the pleadings filed by the respective parties, other than to say that they made up the issues in the case, which will be fully stated hereinafter in connection with the matters brought to our attention for decision.

We are faced at the outset with the necessity of disposing of a motion filed by defendant, asking that this appeal be dismissed or the cause ordered stricken from the docket. It will be recalled that "the judgment or decision of the court" appealed from was the order of May 28, 1926, sustaining the motion for a new trial. A short-form transcript was thereafter prepared and filed in this court on August 27, 1926, and the docket fee paid; but such transcript, through the inadvertence of the clerk of the circuit court, erroneously showed the appeal as having been taken from the judgment rendered on the verdict for plaintiff. Defendant now suggests that plaintiff thereby failed to comply with the provisions of section 1479, R. S. 1919, requiring that, in lieu of a perfect transcript of the entire record, the appellant, 15 days before the first day of the term of the...