Mangelsdorf v. Pennsylvania Fire Ins. Co.

• Decision Date: 08 April 1930
• Citation: 26 S.W.2d 818,224 Mo.App. 265
• Parties: EDWARD F. MANGELSDORF AND ALBERT H. MANGELSDORF, RESPONDENTS, v. THE PENNSYLVANIA FIRE INSURANCE COMPANY, A CORPORATION, APPELLANT. [*]
• Court: Missouri Court of Appeals

26 S.W.2d 818

224 Mo.App. 265

EDWARD F. MANGELSDORF AND ALBERT H. MANGELSDORF, RESPONDENTS, v. THE PENNSYLVANIA FIRE INSURANCE COMPANY, A CORPORATION, APPELLANT. ^[*]

Court of Appeals of Missouri, St. Louis

April 8, 1930

Appeal from the Circuit Court of St. Charles County.--Hon. Edgar B Woolfolk, Judge.

REVERSED AND REMANDED.

Judgment reversed and remanded.

William Waye, Jr., and Silber, Isaacs, Silber & Woley for appellant.

The judgment appealed from should be reversed, because: (1) (a) The policy of insurance provided that in the event that the building insured or a material part thereof fell from a cause other than sprinkler leakage, the insurance should cease. (b) A material part of the building did fall from a cause other than sprinkler leakage and the trial court should have instructed the jury to find for the defendant. (c) The plaintiffs wilfully overloaded the floors in question thereby causing them to collapse, which conduct of the plaintiffs bars their recovering. (2) Plaintiffs' failure to furnish proofs of loss within sixty days of the loss, bars their recovering on their contract of insurance. Madox v The Dwelling House Insurance Co., 56 Mo.App. 343; Haggard v. German Insurance Co., 53 Mo.App. 98. (3) Defendant should have been permitted, on cross-examination of witness Mackay, to ask him the basis of his opinion that a material portion of the building had not fallen. Coca Cola v. Moore, 246 F. 942. (4) The court erred in instructing the jury that if defendant's adjuster instructed plaintiffs to salvage the goods, and the plaintiffs did so, that defendant waived its right to require proofs of loss, for this instruction failed to take into account the non-waiver agreement and the limitation placed by it on the scope of Mackay's authority. Keet-Roundtree Dry Goods Co. v. Mercantile Town Mutual Ins. Co., 100 Mo.App. 504. (5) The court erred in instructing the jury that if defendant's adjuster instructed plaintiffs to salvage the goods and the plaintiffs did so, that the company waived the right to declare the policy void because of the fall of a material portion of the building, since no act of the adjuster could defeat the right of the company to contest the existence of the obligation. Weed v. London & Lancashine Fire Ins. Co., 116 N.Y. 106, 22 N.E. 229. (6) The court erred in instructing the jury that unless part of the building fell to such an extent as to render it unsuitable for use as an entire building and unless the interior of the building was exposed to the inclemency of the weather that the fall was not within the meaning of the policy. (7) The court was not warranted in submitting to the jury the question of imposing penalties for vexatious refusal to pay and attorneys' fees to the jury. (a) Because section 6337, Missouri Revised Statutes 1919, does not include sprinkler leakage insurance. Breedon v. Frankfort Marine Accident and Plate Glass Ins. Co., 220 Mo. 327; Mears Mining Co. v. Maryland Casualty Co., 162 Mo.App. 178; Non-Royalty Shoe Co. v. Phoenix Assurance Co., 277 Mo. 399. (b) On the record in the case at bar, the trial court was not warranted in submitting to the jury the question of penalties and attorneys' fees for vexatious refusal to pay. Non-Royalty Shoe Co. v. Phoenix Assurance Co., 277 Mo. 399; Aufrichtig v. Columbia National Life Ins. Co., 298 Mo. 1; State ex rel. Gott v. Fidelity & Deposit Co., 298 S.W. 83. (8) The argument to the jury by plaintiffs' counsel was so calculated to inflame the passions and prejudices of the jury as to require a reversal of this cause. Neff v. Cameron, 213 Mo. 350; Jackman v. St. Louis & Hannibal Ry. Co., 206 S.W. 244.

Abbott, Fauntleroy, Cullen & Edwards and Theodore C. Bruere for respondents.

BENNICK, C. Becker and Nipper, JJ., concur. Haid, P. J., not sitting.

OPINION

BENNICK, C.

This is an action upon a policy of insurance issued by defendant against all direct loss and damage by sprinkler leakage to the contents of certain premises owned by plaintiffs, and located at Main and Victor streets, in the city of St. Louis. Upon a trial to a jury, a verdict was returned in favor of plaintiffs, and against defendants, for the sum of $ 2226.10 on the face of the policy, $ 112.04 as interest, $ 233.81 as damages, and $ 250 as attorney's fees, or for the aggregate amount of $ 2821.95. Judgment was rendered in conformity with the verdict, from which, following the overruling of its motion for a new trial, defendant has duly appealed.

Plaintiffs were engaged in the wholesale seed business, which involved the purchase, storage, preparation for resale, and the resale of various kinds of seeds. The building in which the business was conducted measured 225 feet, six inches, by fifty-four feet, two inches; and consisted of a basement, first and second floors, and a cupola built above the roof of the second story. The walls of the building were brick, and the flooring was laid upon beams, which in turn were supported by pillars which stood at intervals throughout the building. The structure itself consisted of two sections which had been built at different times, and which were separated by a brick wall through which openings or doors were made connecting the two sections; but it was nevertheless shown by plaintiffs' evidence that the whole of the structure constituted but one building.

Some time during the night of May 17, 1927, a portion of the second floor, measuring thirty-one feet, six inches, by twenty-four feet, nine inches, collapsed, carrying with it an approximately equal area of the first floor, and precipitating such sections, together with the seeds stored thereon, down into the basement of the building.

The evidence disclosed that the building was equipped with an automatic sprinkler system, consisting of pipes attached to the walls and ceilings, which were fed from a feeder pipe which ran from a point under the basement to a water main in the street. The system was designed so that the sprinkler pipes would ordinarily be filled with air at a sufficient pressure to prevent water from flowing into the pipes. However, in the event that a sprinkler head opened by reason of heat, or on account of corrosion or any mechanical defect in the pipes themselves, the air would escape, with the result that the air pressure would be released, and the water would flow into the pipes and escape through the head, or through the point at which the defect had developed.

The sprinkler system was equipped with what is known as a Potter automatic alarm system, which consisted of a clock-like device located at a point in the basement of the building near the main valve, so that in the event of a flow of water out of the supply pipes through the main valve and into the sprinkler system itself, an electrical alarm would be sent to the headquarters of the Potter Alarm Company, and in turn relayed to the city fire department. Plaintiffs' evidence disclosed, however, that on certain occasions in the past when the system had not been in correct working order, no alarm had been registered at the Potter head-quarters.

It was shown that there were railroad tracks just outside the building, over which trains passed at intervals throughout the day and night, and that the effect of the operation of trains past the building was to cause the building to shake, and the sprinkler pipes to vibrate and rattle in their hangers. It also appears that on an average of six or seven times a year, the system became out of order; and that as soon as a leak would be discovered, steps would be taken to find the break and repair it.

At the time of the loss under the policy, the normal weight of the seeds stored on the second floor was seventy-five pounds to the square foot, and on the lower floor, twenty-five pounds to the square foot, although ordinarily the weights had varied from one hundred to two hundred pounds to the square foot. Plaintiffs' evidence showed further that the effect of allowing the seeds to become saturated with water would be to more than double their weight.

As soon as plaintiffs were informed at their home of the accident that had occurred during the night, they came to the building, and found that water was pouring with great force, not only out of the sprinkler pipes that had been located under the first and second floors, but also out of a tie-in pipe which hung down from the ceiling of the second floor directly over the portion of the floors that had collapsed. The witnesses testified further that even in the second story, the sacks which remained on the floor, as well as the floor itself, were wet for some distance back from the hole, indicating that it had been leakage from overhead, with a resultant increase of weight on the floor, that had caused the floor to give way.

Immediately following the loss, plaintiffs, with their adjuster, met with defendant's adjuster, Mackay, who had been sent by defendant to ascertain and report to it the amount of damage and cause of the loss, whereupon the usual non-waiver agreement was entered into between the parties, providing in effect that no action taken by either party thereto with reference to ascertaining the amount of loss or damage, or investigating any circumstances connected therewith, should be construed as a waiver of any of the terms, conditions, or provisions of the policy, or as an admission or denial of any liability for the claim made thereunder.

At the same time, Mackay told plaintiffs to salvage the dry seeds and the partially wet seeds as quickly as possible; to hire men to do the work; to rent space in which to dry out and store the seeds; to hire trucks to convey the seeds to such premises; and then to get up an inventory of the damaged merchandise after such of the seeds had been...