Harvey v. Switzerland General Ins. Co.

• Decision Date: 14 July 1953
• Docket Number: No. 28584,28584
• Citation: 260 S.W.2d 342
• Parties: HARVEY et al. v. SWITZERLAND GENERAL INS. CO., Limited.
• Court: Missouri Court of Appeals

Page 342

260 S.W.2d 342

HARVEY et al. v. SWITZERLAND GENERAL INS. CO., Limited.

No. 28584.

St. Louis Court of Appeals, Missouri.

July 14, 1953.

Jack O. Knehans, Cape Girardeau, for appellant.

J. Grant Frye, Cape Girardeau, for respondents.

HOUSER, Commissioner.

This is a suit on an all-risk personal property floater policy. In the trial court a jury rendered a verdict for $1,200 in favor of the insureds, Raymond and Mabel Harvey, and the insurer has appealed from the judgment rendered on the verdict.

The single question on this appeal is whether an insurance policy insuring personal property against all risks of loss or damage but not insuring '* * * against deterioration, moth, vermin and inherent vice; against damage to property * * * occasioned by or actually resulting from any work thereon in the course of any refinishing, renovating or repairing process' covers a loss to carpeting resulting from the act of a third person employed by the insureds to spray the carpeting with a liquid solution for the purpose of preventing moth infestation and damage. The carpeting was laid wall to wall throughout three downstairs rooms and the halls of plaintiffs' home. Mrs. Harvey had seen some flying millers or moths in the upstairs portion of her home, and she and her husband concluded that they should have the carpeting treated as a matter of precaution 'to prevent and protect against moths.' Both she and her husband testified positively that there were no moths in the carpeting. They employed Charles Nolte to spray the carpeting as a preventive measure. At plaintiffs' invitation Nolte inspected the carpeting and found no moths in it, although in the process of doing the spraying he found one hole in the carpeting under a buffet in the dining room. In it there was some moth excreta. The solution used was a killing agent, composed of 94% insecticide oil and the balance chemicals. Stains and discolorations appeared, which damaged the carpeting and substantially reduced its value.

Appellant's position is that if a peril specifically excluded from coverage, such as damage from moths, sets other causes in motion which result in a loss, the peril excluded is to be regarded as the proximate cause of the entire loss to so as bring the loss within the exclusion provision and beyond the coverage of the policy. Appellant claims the benefit of the coverse of the rule laid down in Cova v. Bankers & Shippers Ins. Co. of New York, Mo.App., 100 S.W.2d 23, that where the peril specifically insured against sets other causes in motion which, in unbroken sequence and connection between the act and the final injury, produces the final result for which the insured seeks to recover, the peril insured against will be regarded as the proximate cause of the entire loss.

One difficulty with this contention is that there is no showing that the peril specifically excluded (damage caused by moths) set other causes in motion. There was no evidence that damage by moths caused the employment of Nolte to apply the chemicals which damaged the carpeting. It was the fear of moth infestation and damage that prompted the action of plaintiffs in employing Nolte. He was employed to prevent and protect the carpeting against moths as preventive measure. It was only...