Hill v. Employers' Liability Assur. Corp.

• Decision Date: 06 November 1936
• Citation: 122 Conn. 193,188 A. 277
• Parties: HILL v. EMPLOYERS' LIABILITY ASSUR. CORPORATION, Limited.
• Court: Connecticut Supreme Court

188 A. 277

122 Conn. 193

HILL v. EMPLOYERS' LIABILITY ASSUR. CORPORATION, Limited.

Supreme Court of Errors of Connecticut.

November 6, 1936

Appeal from Superior Court, Hartford County; John Richards Booth Judge.

Action by Amos Hill against the Employers' Liability Assurance Corporation, Limited, on a public liability policy to recover the amount of a judgment obtained by the plaintiff against a third party which was tried to the court. Judgment for the defendant, and the plaintiff appeals.

In action on public liability policy, finding that injury sustained by plaintiff was due to making of alterations in building, and that insurer was therefore relieved of liability, held error, where only issue as to defense of lack of permission to make alterations was as to whether alterations were such as would require insured to obtain a permit and pay an extra premium, and there was no suggestion that injuries resulted from structural alterations.

John T. Robinson and Jacob I. Suisman, both of Hartford, for appellant.

Martin E. Gormley, of New Haven, and Adrian W. Maher, of Bridgeport for appellee.

Argued before MALTBIE, C.J., and HINMAN, BANKS, AVERY, and BROWN JJ.

HINMAN, Judge.

The complaint alleged, and the answer admitted, that the defendant issued to the Savings Bank of Rockville through the defendant's agent Lebbeus F. Bissell, doing business under the name of " L. Bissell & Son," a blanket public liability policy insuring the bank against loss or damagé from bodily injuries accidentally sustained by any person or persons other than employees of the assured while within premises described in declarations attached to the policy, by reason of the occupation, use, maintenance, or control of the premises by the assured, for one year from January 1, 1934. The premises so described included a building located on North street in Hartford, which, on or about June 4, 1934, the bank sold and conveyed to Clark and Zirone.

It was alleged, further, as follows: That at the time of the conveyance Clark and Zirone paid to the bank the unearned part of the premium on the policy so far as related to the premises; that the bank notified Bissell, the duly authorized agent of the defendant, of the sale and conveyance and of the transfer of the policy so far as it related to the premises, and the defendant in accordance with its customary practice consented to the transfer; and that on June 23, 1934, the policy was in full force and effect, and in so far as it related to the premises conveyed to them, Clark and Zirone were the beneficiaries of the assured under it. On that day the original plaintiff, Amos Hill, was a tenant of Clark and Zirone, occupying a tenement on the third floor of the building, and sustained injuries while descending the stairway leading therefrom, which injuries he claimed were caused by the negligence of his landlords in failing to provide a handrail on the stairway and to light the hall where the stairway was located. He instituted an action against Clark and Zirone to recover damages for these injuries in the superior court in Hartford county, the present defendant was duly notified of the claim and action but refused to defend, and after a trial judgment was rendered for the plaintiff to recover $1,611.50 damages and his costs. The judgment being unsatisfied, the plaintiff claimed in the present action, under section 4231 of the General Statutes, recovery of the amount thereof from this defendant.

The effect of the denials in the first defense of the answer was to put in issue the allegations calculated to establish that Clark and Zirone became entitled to the benefits of the policy and were the beneficiaries of and assured under it in so far as it related to the premises conveyed to them. The second defense set forth that the policy issued by the defendant to the bank contained certain exclusions, including one that it " shall not cover injury or death *** (5) growing out of or due to the making of additions to, structural alterations in, or extraordinary repairs of the said premises unless a written permit is granted by the Corporation specifically describing the work and an additional premium is paid therefor." It then alleged facts concerning changes and repairs being made in the premises prior to and at the time of the plaintiff's injuries, and that these constituted " additions, structural alterations and extraordinary repairs," and that " no written permit for the continuing of such insurance having been granted by the defendant" and " no additional premium for the extraordinary hazard caused by such additions, structural alterations and extraordinary repairs having been paid" by the bank or Clark and Zirone, " said policy was therefore null and void at the time of the alleged accident to the plaintiff" and he is not entitled to recover the amount of the judgment from the defendant. The plaintiff's reply in effect was a general denial, and he subsequently added, by amendment, an allegation that the defendant is estopped from denying that Clark and Zirone acquired an interest in the policy when the defendant's agent was notified thereof on June 6, 1934.

At the opening of the trial the plaintiff moved that the defendant be required to elect whether to stand upon the first or the second defense, and the denial of this motion is assigned as error. However, there are not, here, the " wholly inconsistent claims" pursuit of which resulted in such complications as led us to direct that an election be required in Rochon v. Preferred Accident Ins. Co., 118 Conn. 190, 196, 171 A. 429, on which the appellant relies; Hoard v. Sears, Roebuck & Co., 122 Conn. 185, 188 A. 269. The trial court did not err in denying the motion.

Pertaining to the issue raised by the first defense-whether or not Clark and Zirone became assured and entitled to benefit under the policy, the trial court found that when the bank conveyed the premises to Clark and Zirone it took back and thereafter held a mortgage on the premises; that it collected from the grantees a sum representing the unearned part premium on the policy so far as it related to these premises; that it notified Bissell of the transaction " for the purpose of effecting a transfer of the interest in said policy to said Clark and Zirone." The finding states, further, that on receiving this notice Bissell caused a fire insurance policy upon the premises to be transferred by indorsement to Clark and Zirone, but did not make any indorsement showing the transfer of the interest in this liability policy, for the reason that he believed that an indorsement already attached to the policy applied to the situation and extended the benefits of the policy to Clark and Zirone. The latter relied upon the notice so given and upon their payment of premium and believed that they were covered by the policy.

The trial court further found, however, that while Bissell was an insurance agent authorized to transact all lines of insurance for the defendant, he " had power only to solicit insurance, deliver the policies and collect the premiums" ; that he did not notify any one connected with the defendant of this transfer until June 29th (which was after...