Hardware Mut. Cas. Co. v. Mason-Moore-Tracy, Inc.
| Decision Date | 13 February 1952 |
| Docket Number | No. 84,Docket 22146.,84 |
| Citation | 194 F.2d 173 |
| Parties | HARDWARE MUT. CAS. CO. v. MASON-MOORE-TRACY, Inc. |
| Court | U.S. Court of Appeals — Second Circuit |
Wasserman, Behr, & Shagan, New York City, for defendant-appellant, Mason-Moore-Tracy, Inc.; Bernard A. Green, New York City, counsel, and Arnold Ostwald, New York City, on the brief.
Hughes, Flamman & Simpson, New York City, for plaintiff-appellee, Hardware Mut. Cas. Co., James A. Hughes, New York City, counsel.
Before SWAN, Chief Judge, and L. HAND and AUGUSTUS N. HAND, Circuit Judges.
The plaintiff is a Wisconsin and the defendant a New York corporation. On September 23, 1943 the plaintiff issued to the defendant a Manufacturers' and Contractors' policy wherein it undertook to insure the defendant for liability incurred in its business of moving machinery and equipment including rigging operations during the period between September 23, 1943 and September 23, 1944.
The plaintiff brought this suit to obtain a declaratory judgment relieving it from liability to the defendant under the policy. It obtained such a judgment in the court below.
The pertinent coverage provisions of the policy are as follows:
The hazards referred to are defined in Division 1(a) as all operations during the policy period which are necessary or incidental to the ownership, maintenance or use of the premises. Under the heading of "Exclusions" the policy provided as follows:
"This policy does not apply:
* * * * * *
"(i) under Coverage B, with respect to Divisions 1 * * * of the Definition of Hazards, to injury to or destruction of property owned, rented, occupied or used by or in the care, custody or control of the insured."
During the period of coverage the defendant entered into an agreement with T. M. Stewart, Inc., to move certain carpet cleaning machinery from premises occupied by Stewart at 438 West 51st Street, Manhattan, New York. The trial court found that in the course of the work the defendant's riggers were attempting to remove from the building a heavy piece of machinery known as a "rug beater." They suspended it within the cage of an elevator operated on the above premises by means of a rope attached to the top of the elevator shaft and running down to the rug beater through an opening in the top of the elevator cage. While the rug beater was in the cage the elevator began to move up and down. This caused the rope suspending the rug beater to break and the entire weight of it to come to rest on the floor of the elevator. As a result the elevator descended to the bottom of the shaft and was damaged by the impact. The defendant employed The Maintenance Company, Inc., to raise the elevator but in the course of the operations the elevator again fell and further damage was done to it and its equipment.
The Fishers, who owned the building at 438 West 51st Street, and Auto Van & Warehouse Corporation, the lessees of the lower floors, brought action in the New York State Court against Mason-Moore-Tracy, Inc., T. M. Stewart, Inc., the owner of the rug beater and other property, and The Maintenance Company to recover damages for the injury to the elevator and its equipment occasioned through negligence and also to recover for the loss of the use of portions of the premises arising after the elevator was put out of service and the premises had thereby become unavailable for rental. That action was settled for $3,300, of which Mason-Moore-Tracy, Inc., paid $1,300 as its share of the damages.
Mason-Moore-Tracy, Inc. (hereinafter called Mason), thereafter sued the Casualty Company in the New York State Court to recover the $1,300 which it had paid to the owners of the building for injury to the elevator and its equipment and also $6,250 which it had paid to its attorneys for defending the action by the owners of the building and its lessees. That suit was removed to the United States District Court and is still pending. The Casualty Company then brought the suit at bar for a declaratory judgment to relieve it of liability under its policy which, as we have already said, was decided in its...
To continue reading
Request your trial
-
Mayfair Fabrics v. Henley
...along with the other circumstances in the case, that such liability was not intended. The decision in Hardware Mutual Casualty Co. v. Mason-Moore-Tracy, Inc., 194 F.2d 173 (2 Cir. 1952), supports this conclusion. That case involved an exception in a liability insurance policy, which exclude......
-
McDowell-Wellman Engineering Co. v. Hartford Acc. and Indem. Co.
...we conclude that loss-of-use damages for the ore bridge are not covered by the policy as well. Hardware Mutual Casualty Co. v. Mason-Moore-Tracy, Inc., 194 F.2d 173, 176 (2d Cir.1952); Employers Casualty Co. v. Brown-McKee, Inc., 430 S.W.2d 21, 27 Accordingly, we will affirm the district co......
-
Saltzman v. Great American Indemnity Co.
...223, 231 S.W.2d 386, 388; Jacobson v. Aetna Casualty & Surety Co., 233 Minn. 383, 46 N.W.2d 868; Hardware Mutual Casualty Co. v. Mason-Moore-Tracy, Inc., 2 Cir., 194 F. 2d 173; Vaughan v. Home Indemnity Co., 86 Ga.App. 196, 71 S.E.2d 111; John G. Speirs & Co. v. Underwriters at Lloyd's Lond......
-
County of Broome v. Travelers Indemnity Company
...may be applicable whether the insured's control is exclusive or in conjunction with others (Hardware Mut. Cas. Co. v. Mason-Moore-Tracy, Inc., 194 F.2d 173, 175-176 (2nd Cir.1952); see Monari v. Surfside Boat Club, 469 F.2d 9 (2nd Cir.1972); International Derrick & Equip. Co. v. Buxbaum, 24......