John Alt Furniture Co. v. Maryland Casualty Co.

• Decision Date: 17 February 1937
• Docket Number: No. 10709.,10709.
• Citation: 88 F.2d 36
• Parties: JOHN ALT FURNITURE CO. v. MARYLAND CASUALTY CO.
• Court: U.S. Court of Appeals — Eighth Circuit

88 F.2d 36 (1937)

JOHN ALT FURNITURE CO. v. MARYLAND CASUALTY CO.^*

No. 10709.

Circuit Court of Appeals, Eighth Circuit.

February 17, 1937.

Louis J. Portner, of St. Louis, Mo. (Ben Philipson, of St. Louis, Mo., on the brief), for appellant.

John S. Marsalek, of St. Louis, Mo. (Moser, Marsalek & Dearing, of St. Louis, Mo., on the brief), for appellee.

Before STONE, SANBORN, and VAN VALKENBURGH, Circuit Judges.

SANBORN, Circuit Judge.

The John Alt Furniture Company (hereinafter referred to as the assured) brought this action upon a public liability policy issued to it by the Maryland Casualty Company (hereinafter referred to as "the Maryland"). From a judgment for the Maryland, this appeal is taken.

The policy covered "loss from the liability imposed by law upon the assured for damages on account of bodily injuries * * * accidentally suffered * * * by any person or persons not employed by the assured, while within or upon the premises described * * * (and elsewhere, if caused in the course of their employment by employees of the assured engaged as such at said premises, but who are required in the discharge of their duties to be from time to time at other places). * * *" By the terms of the policy, the Maryland was required to defend against any claims or suits instituted against the assured on account of such injuries.

There was excluded from the coverage of the policy "any accident caused directly or indirectly by any automobile vehicle or by any draught or driving animal or vehicle owned or used by the assured or by any employee of the assured in charge thereof, unless such accident shall occur upon the premises specifically described in Item IV(a) of the Schedule hereof the premises occupied by the assured. * * *" There was also excluded from coverage "any accident caused directly or indirectly by the consumption, use, instalation, removal, repair, change, or demonstration, elsewhere than at the premises specifically described in Item IV(a) of the Schedule hereof the premises occupied by the assured, of any goods, article, or product manufactured, handled, or distributed by the assured."

The policy contained the following provision relative to notice:

"(A). Immediate written notice of any accident, like notice of any claim and like notice of any suit resulting therefrom, with every summons or other process, must be forwarded to the home office of the company, or to its authorized agent; provided, however, that the failure to give such immediate notice shall not invalidate any claim made by the assured, if it shall be shown not to have been reasonably possible to give such notice immediately and that notice was given as soon as was reasonably possible."

On May 8, 1933, while the policy was in force, three of the assured's employees, in the course of their duties, were engaged in delivering furniture which the assured had sold to one of its customers living on the second floor of an apartment building at 4457 Lee avenue, St. Louis. The furniture was transported to the premises in a truck of the assured driven by one of its employees. In carrying this furniture from the truck to the second floor apartment, these employees removed a door from the rear of the building, which door they leaned against a clothes pole in the back yard of the premises. The door fell, striking and injuring a Mrs. Lola Olson, who was a tenant of one of the first floor apartments.

At the time this accident occurred, the assured had a policy of automobile liability insurance in the St. Paul Mercury Indemnity Company. The Maryland policy in suit and the Mercury policy had been procured by the assured through a Mr. Hampe, an insurance broker of St. Louis.

On the morning after the accident, the assured reported it to Mr. Hampe's office. One of the employees of that office, Amanda Christ, who was in doubt as to which of the policies covered the accident, apparently called the claim department of the local office of the Maryland by telephone, and was advised by some unidentified person that the Maryland policy did not cover such an accident. She then reported the accident to the St. Paul Mercury Indemnity Company, which denied liability, but agreed to defend, under a nonwaiver agreement, any suit which might be brought by Mrs. Olson. Mrs. Olson commenced suit against the assured on June 22, 1933.

On February 21, 1934, more than two months before the trial of the Olson suit, Mr. Hampe wrote the following letter to the Maryland:

"February 21st, 1934. "Claim Department, Maryland Casualty Co., Pierce Building, St. Louis, Missouri. "Gentlemen "Re: Policy LF 150802 — John Alt Furniture Co. "Lola Olson — Claimant — Date of Accident 5/8/33.

"I wish to report an accident under the above policy which occurred on May 8th, 1933. The assured was delivering furniture at 4457 Lee Avenue. In order to get the furniture into the flat it was necessary to remove the rear door of the flat and after the door was removed it was taken into the rear yard and placed against a clothes pole next to the fence. The door had been in this position about half hour to an hour while the assured's employees were taking furniture into the flat, when the wind apparently blew the door over and in falling the top of the door struck Lola Olson, a tenant in this flat who was walking around in the back yard assisting a small child to walk.

"The injuries at first did not appear to be serious but later the injured was taken to the Christian Hospital and rather serious injuries were claimed.

"This accident was reported to me by the assured immediately after it occurred and I reported it to the St. Paul Mercury Indemnity Company who carry the truck policy as I thought that was the policy which would cover this accident. The St. Paul Mercury Indemnity Company denied liability but later under stipulation agreed to handle the investigation and defense of the suit without waiving any rights. Jesse L. Renderer of the Thomas English Adjusting Company has been handling the suit and if you desire further information, you may take the matter up with him.

"After thorough consideration of this matter and I am inclined to believe that your policy is the one which covers this accident so I wish you would give the matter the necessary attention and advise me on same.

"Very truly yours. "Signed Otto A. Hampe."

In response to this letter, on March 8, 1934, the Maryland wrote the assured as follows:

"Gentlemen: On February 21st, 1934 Mr. Otto A. Hampe reported, to us an accident that occurred on May 8th, 1933. He stated that your Company was delivering furniture to 4457 Lee Avenue and in order to get the furniture into the flat it was necessary to remove the rear door, and that the man in charge took this door into the rear yard placing it against a clothes pole next to the fence. The door was in this position about a half an hour when the wind blew same down and it struck the claimant, Lola Olson.

"We regret very much that it is necessary to call your attention to the exclusions under your policy, Part VII, Paragraph 6, which states:

"`Any accident caused directly or indirectly by any automobile vehicle or by any draught or driving animal or vehicle owned or used by the Assured or by any employee of the Assured in charge thereof, unless such accident shall occur upon the premises specifically described in Item IV(a) of the Schedule hereof or on the public ways immediately adjacent thereto.'

"Feeling sure that you understand our position in the matter, we are,

"Very truly yours "St. Louis Claim Division "Per "Signed W. S. Atchison "W. S. Atchison, Mgr."

On or about April 30, 1934, the Olson suit was tried. The assured was defended by the St. Paul Mercury. The result of the trial was a judgment in favor of Mrs. Olson and against the assured for $7,500.

After the assured had paid this judgment, it brought this action against the Maryland for reimbursement.

The defenses asserted by the Maryland in its answer were: (1) Failure of the assured to notify the Maryland of the accident and of the Olson suit, as provided by the policy. (2) Failure to forward to the Maryland the petition and summons in the Olson suit. (3) That the accident which resulted in the injury to Mrs. Olson was not within the coverage of the policy.

In its reply, the assured asserted: (1) That it had given notice to the insurance broker who procured the policy for it, in accordance with a custom prevailing in St. Louis whereby notice to such a broker is to be taken as written notice to the insurer. (2) Waiver of notice by the Maryland because of its denial of liability.

The court below, at the close of the evidence, directed a verdict for the Maryland on the ground of the noncompliance by the assured with the conditions of the policy requiring notice of accident and notice of suit and the forwarding to the Maryland of every summons and other process in such suit. From the judgment entered upon the verdict, the assured has appealed.

The assignment of errors, in so far as it relates to rulings upon the evidence, does not comply with rule 23 of this court, which provides: "* * * When the error alleged is to the admission or to the rejection of evidence, the assignment of errors shall quote the full evidence so admitted or rejected and the objections, exceptions and rulings thereon. * * *"

Therefore, the only alleged error properly assigned is that the court erred in directing a verdict in favor of the Maryland.

Two questions are properly presented for review:

(1) Did this policy cover the loss occasioned by the accident to Mrs. Olson?

(2) If so, did the letter of March 8, 1934, constitute a waiver by the Maryland of the assured's failure to give notice of the accident and notice of the suit, and to forward to the Maryland the petition and summons in the Olson suit?

So far as the question of coverage is concerned, it is clear that this policy did cover the accident which resulted in the injuries...