Lititz Mut. Ins. Co. v. Branch, 38830

• Citation: 561 S.W.2d 371
• Decision Date: 15 November 1977
• Docket Number: No. 38830,38830
• Parties: The LITITZ MUTUAL INSURANCE CO., a corp., Respondent, v. Amy Lea BRANCH, Richard Leo Branch, and A. W. Kable and Maureen F. Kable, his wife, Appellants. . Louis District, Division One
• Court: Court of Appeal of Missouri (US)

Page 371

561 S.W.2d 371

The LITITZ MUTUAL INSURANCE CO., a corp., Respondent, v. Amy Lea BRANCH, Richard Leo Branch, and A. W. Kable and Maureen F. Kable, his wife, Appellants.

No. 38830.

Missouri Court of Appeals, St. Louis District, Division One.

Nov. 15, 1977.

Motion for Rehearing and/or Transfer Denied Jan. 18, 1978.

Application to Transfer Denied March 13, 1978.

Baer, Hines & Thomas, Richard C. Thomas, Columbia, Van Matre & Van Matre, Everett S. Van Matre, Mexico, for appellants.

Edwards, Seigfreid, Runge & Leonatti, P/C Jerome W. Seigfreid, Louis J. Leonatti, Mexico, for respondent.

SMITH, Judge.

Defendants appeal from a declaratory judgment entered by the trial court determining that a homeowner's policy issued by plaintiff insurance company does not obligate plaintiff to defend the Kables in a lawsuit brought by defendants Branch for injuries sustained by Amy Lea Branch when she was bitten by a dog owned by the Kables.

The dog involved was an eight year old male Weimaraner named Baron. On June 16, 1974, Baron bit a neighbor boy, Virgil McCormack, while Baron was tethered near the Kable home. Baron was taken to a veterinary clinic where he remained under observation for ten days. Upon his release, Baron was taken by Mr. Kable to the premises of the Kable Dairy Company a business owned by the Kables. The dog was tethered at that location where he remained until July 12, 1974, when he bit the Branch girl. Mr. Kable kept the dog on the dairy company premises because he believed the McCormack bite was the result of continuous harassment and teasing of Baron by the McCormack children and their friends. Following the Branch bite, Mr. Kable had the dog destroyed.

Following suit by the Branches against the Kables, plaintiff filed this declaratory judgment suit to have determined its liability under a homeowner's policy issued to the Kables and covering the residence premises of the Kables. Plaintiff contended that three exclusions applied to preclude coverage. Those three exclusions are set forth in the margin. ¹ The trial court found that the presence of the dog on the dairy company premises was not for business purposes so that exclusion 1(d) did not apply. It also found that Mr. Kable did not intend or expect the Branch bite so that exclusion 1(f) did not apply. Plaintiff does not take issue with either of these findings and both are fully supported by the evidence. The court also found that none of the three exclusions applied to the medical payments coverage of the policy. It found, however, that exclusion 1(e) does apply to the liability coverage of the policy and that the bodily injury sustained arose out of premises, other than the insured premises, controlled by the insured. In determining that exclusion 1(e) did not apply to medical payments, the court found that the policy specifically provided for coverage when the injury was caused by "an animal owned by . . ." the insured elsewhere than on the insured premises. No such specific language is contained in the personal liability coverage. Plaintiff concedes that the court's finding on the medical payment coverage is correct. There is no factual dispute that the dairy company premises are controlled by the insured, Mr. Kable; that the dog was located on those premises at the time of the Branch bite; that he had been so located for at least two weeks; and that the residence premises insured by the homeowner's policy was the Kable residence not the dairy company premises.

We are therefore left with determining whether this bodily injury was one "arising out of . . . premises, other than an insured premises, . . . controlled by . . . insured. . . . We conclude it was not. The liability coverage provided was to the insured for damages he might become legally obligated to pay caused by an "occurrence. " An occurrence is defined as an accident. The personal liability coverage set out in the policy would, in the absence of an exclusion, apply to the dog bite, as the liability coverage itself contains no restrictions as to location of the injury. If the dog bite is not covered it is because it was an injury "arising out of" the dairy company premises.

We find no cases interpreting the words "arising out of" in a fact situation similar to this. In Toole v. Bechtel Corporation, 291 S.W.2d 874 (Mo.1956) "arising out of employment" was defined as follows:

"An injury arises 'out of' the employment when there is a direct causal connection between the injury and the employment; and, even though the precise injury need not have been anticipated, it must have been a rational consequence of some hazard connected with the employment."...