Midland Const. Co. v. United States Cas. Co.
| Decision Date | 03 August 1954 |
| Docket Number | No. 4854.,4854. |
| Citation | 214 F.2d 665 |
| Parties | MIDLAND CONST. CO., Inc. v. UNITED STATES CAS. CO. |
| Court | U.S. Court of Appeals — Tenth Circuit |
J. Wirth Sargent, Wichita, Kan. (W. D. Jochems and E. A. Blaes, Wichita, Kan., on the brief), for appellant.
Robert H. Nelson, Wichita, Kan. (W. A. Kahrs, Clarence N. Holeman and Wilbur D. Geeding, Wichita, Kan., on the brief), for appellee.
Before PHILLIPS, Chief Judge, and HUXMAN and PICKETT, Circuit Judges.
This was an action by the United States Casualty Company1 against Howse Company, Incorporated,2 Midland Construction Company, Incorporated,3 Charles E. Mahaney Roofing Company, Incorporated,4 and Hartford Accident and Indemnity Company, a corporation, for a declaratory judgment to have determined its liability under its policy of insurance issued to Midland to defend an action instituted by Howse against Midland in a state court for damages and to discharge any judgment obtained therein against Midland. The case was tried upon an agreed statement of fact and the testimony of one witness. The trial court entered judgment for the casualty company, finding that under the terms of its policy it was not required to defend the state court action or discharge any judgment obtained therein against Midland.
There is no disputed issue of fact in the case. Briefly, the facts are these. Midland is engaged in house construction and repair work. The casualty company had issued its policy of insurance to Midland, wherein so far as material it agreed to "pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages because of injury to or destruction of property, including the loss of use thereof, caused by accident * * *." The contract also required the casualty company to "defend any suit against the insured alleging such injury, sickness, disease or destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudulent; * * *."
Howse owned a retail furniture business at 425 East Douglas in Wichita, Kansas. On August 7, 1952, it entered into an oral contract with Midland to do some repair work on the roof which required the opening of the roof. Midland's contract did not require it to close the opening. At the same time Howse entered into a separate oral contract with Mahaney to close the opening in the roof and seal it, when Midland had completed its work. Representatives of Howse, Midland and Mahaney met the day before the work was to begin and agreed that Midland was to call Mahaney before Midland had fully completed its work, in order that Mahaney's employees could prepare to close the opening when Midland's work was finished. The work was started by Midland on August 7, 1952, and about 1:00 p. m. on that day Midland's representative called Mahaney's employees and informed them that Midland would be through with its work by 2:30 or 3:00 p. m. and requested Mahaney to come to the building and close the hole in the roof. At about 2:15 or 2:20 p. m. Healy, Midland's representative, went over to Mahaney's crew, which was working near by, and told them they should come to the Howse building and complete the work. Thereafter, Healy made a second trip to Mahaney's men and told them what would happen if they did not come over and close the opening. Apparently rain was in the offing at that time. Mahaney's men did not come until about 3:00 p. m., at which time it had been raining about ten minutes. It took Mahaney's men about five or ten minutes to close the opening after they got there, but in the meantime water had run into the building through the opening with resulting damage to the stock of merchandise...
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