Kraftsow v. Brown

• Decision Date: 20 January 1953
• Citation: 172 Pa.Super. 581,94 A.2d 183
• Parties: KRAFTSOW et al. v. BROWN et al.
• Court: Pennsylvania Superior Court

94 A.2d 183

172 Pa.Super. 581

KRAFTSOW et al. v. BROWN et al.

Superior Court of Pennsylvania.

January 20, 1953

Action in assumpsit against insurance brokers of plaintiffs for failure to notify insurer that plaintiffs had moved to new place of business, thereby causing plaintiffs' water damage loss to be uninsured. The Municipal Court of the County of Philadelphia, March Term, 1948, No. 767, Adrian Bonnelly, J., entered judgment for plaintiffs, and defendants appealed. The Superior Court, No. 106, October Term, 1952 Dithrich, J., held that where water had collected on roof of plaintiffs' building due to heavy storms and plaintiffs' employee used plunger on drain in roof, and cap covering opening in soil pipe extending from roof to basement came off and caused flooding of basement, fact that plunger was used could not alter accidental character of occurrence, and loss would have been covered by policy had it been in force.

Affirmed.

In action in assumpsit against insurance brokers for failure to notify insurer that plaintiffs had moved to new place of business, wherein brokers alleged that even if notice had been given water damage policy would not have covered loss evidence as to whether damage was caused by seepage through building walls, or by backing up of sewers or drains, or by surface waters, was insufficient for jury.

Morris L. Weisberg, Harry Norman Ball Philadelphia, for appellants.

M. Stuart Goldin, Abe J. Goldin, of Goldin & Goldin, Philadelphia, for appellees.

Before RHODES, P. J., and HIRT, RENO, DITHRICH, ROSS and GUNTHER, JJ.

DITHRICH Judge.

Plaintiffs, who are engaged in the business of retailing household furnishings at 622 Arch Street in the City of Philadelphia, brought this action in assumpsit against defendants, who in the course of their general insurance business acted as plaintiffs' insurance broker. They sued to recover damages allegedly sustained as a result of defendants' failure to notify the insurer that plaintiffs had moved to a new business location and that a certain water damage policy should be transferred to cover merchandise in the new place of business, the alleged consequence of that failure being that damage to plaintiffs' merchandise by water on August 10, 1947, was an uninsured loss. The jury returned a verdict for plaintiffs in he sum of $1,122.75. This appeal is from the dismissal of defendants' motions for a new trial and judgment n. o. v.

Of the defenses offered, only one is now material; namely, that even had the policy been in effect as to the new location, it would not have covered the water damage which gave rise to the loss. It insured ‘ against all Direct Loss And Damage caused solely by the accidental discharge, leakage or overflow of Water * * * from within the following source or sources: [inter alia] Plumbing Systems * * *.’ But it specified that certain hazards were not covered, among them being ‘ loss or damage caused directly or indirectly, (a) by seepage, leakage or influx of water through building walls, foundations, lowest basement floors * * *; or (b) by floods, inundation, backing up of sewers or drains, or the influx of tide, rising or surface waters; * * *.’ It also provided that it would not cover property located in the basement unless the same was raised at least four inches from the floor by means of skids or other device.

Appellants contend that the court below erred in taking from the jury factual issues raised by the testimony relating to the policy's coverage of appellees' loss and in holding as a matter of law that the loss would have been covered had the policy been in force.

According to appellants, the factual issues raised, and not submitted to the jury, were (1) whether the loss was caused by an ‘ accidental discharge’ of water; (2) whether it was caused by ‘ seepage’ through building walls, by the ‘ backing up of sewers or drains,’ or by ‘ surface waters,’ all of which were hazards not covered by the policy; and (3) whether the merchandise was placed on skids as required by the policy.

Plaintiffs' testimony is as follows. There were heavy storms on August 8 and 9, 1947. When the premises were visited on Sunday, August 10, water streaks on the walls and puddles of water were discovered on all four floors and in the basement of the building. An investigation disclosed that four feet of water had collected on the roof, and while some of plaintiffs' employees were on the roof a ‘ terrific roar’ was followed by a ‘ continuous gush of water’ in te basement from an uncapped outlet on the drain or soil pipe-described as extending from the roof to the basement where it runs along a wall of the building to a sewer in Arch Street-and from toilets and sinks in the building which were connected to the pipe. The flooding of the basement and the damage of the merchandise, kept on skids as required by the policy, resulted.

An investigator for the insurer, testifying on behalf of plaintiffs, stated that the water which damaged the merchandise came from the overflow of a toilet on the first floor and from the uncapped outlet of the soil pipe, which was located at a point just inside the foundation wall where the pipe goes out to the street. When...