Morris v. Western Cas. & Sur. Co.

CourtCourt of Appeal of Missouri (US)
Citation421 S.W.2d 19
Docket NumberNo. 8680,8680
PartiesGuido MORRIS, Plaintiff-Respondent, v. The WESTERN CASUALTY AND SURETY COMPANY, a corporation, Defendant-Appellant.
Decision Date25 October 1967

Page 19

421 S.W.2d 19
Guido MORRIS, Plaintiff-Respondent,
No. 8680.
Springfield Court of Appeals, Missouri.
Oct. 25, 1967.

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Allen, Woolsey & Fisher, Russell G. Clark, Springfield, for defendant-appellant.

Mann, Walter, Burkart, Weathers & Schroff, Glenn A. Burkart, Springfield, for plaintiff-respondent.

TITUS, Judge.

The defendant-appellant in this declaratory judgment action is The Western Casualty and Surety Company (hereafter called 'Western'), who had issued to plaintiff-respondent, Guido Morris, a 'Manufacturers' and Contractors' Liability Policy' of insurance which was in force at all times here concerned. In February 1964 Morris, as an individual operating a plumbing, heating and electrical business out of his home in Fair Grove, Missouri, agreed to do 'electrical wiring' for Charles Edel. Morris does not manufacture any products and is not in the business of selling goods. Any materials used in the performance of services for customers are purchased by Morris from distributors 'boxed (or) in open bulk.' The 'electrical wiring' work was completed, accepted and paid for by Edel in April 1964 and 'all that (Morris) was supposed to do had (then) been completed. * * * There was no agreement between (Morris) and Mr. Edel that (Morris was) to go back to do further work.' Edel has claimed in a suit filed against Morris that on July 2, 1964, he was injured and damaged by 'electrical shock' because 'Morris defectively wired (Edel's) home in that * * * Morris failed to provide means of disconnecting all sources and supply of electricity.' Western declined to defend the damage suit which is still pending. The explanation given for its refusal is the work performed for Edel by Morris had been completed when the alleged accident occurred 'away from premises owned, rented or controlled by' Morris and this would be included only in coverage for 'Products--Completed Operations' which Morris did not have. A jury was waived for the trial of this cause in the Circuit Court of Greene County and Western was adjudged obligated to defend Morris in the damage suit and pay any judgment which might be rendered therein

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against him up to the policy limits of $5,000. Western was also declared to be indebted to Morris in the sum of $200 for attorneys' fees he had paid. Western's after-trial motions were overruled and it appealed.

When, as here, the trial court determines the cause without a jury we review the case upon both the law and the evidence (V.A.M.R. 73.01(d)) and tax ourselves with the task of determining if the circuit court's judgment was correct upon any legal theory consistent with the pleadings. University Bank v. Mock, Mo.App., 411 S.W.2d 843(1); Service Construction Company v. Nichols Const. Co., Mo.App., 378 S.W.2d 283, 290(12).

Morris contends the hazard 'Premises--Operations,' admittedly insured by the policy, covers 'the ownership, maintenance or use of premises, and all operations' by him in the business of 'electrical wiring' regardless of the accident site or whether the accident occurred as he was performing services or following completion of his work. (Emphasis added.) In the alternative, he pleads the policy is ambiguous as regards Western's obligations and should be construed to extend the coverage he claims.

The policy is printed on legal cap paper to which has been attached three additional pages. The 'Declarations' describe Morris' business as 'Plumbing and Electrical Wiring' but leave blank the 'Location of premises.' Item 3 of the Declarations (omitting the last or 'Property Damage Coverage B' column and other portions not presently germane) reads:

'Item 3. The insurance afforded is only with respect to such and so many of the following coverages and divisions of hazards as are indicated by specific premium charge or charges. The limit of the company's liability against each such coverage and division shall be as stated herein, subject to all the terms of this policy having reference thereto. The rating classifications under Description of Hazards do not modify the exclusions or other terms of this policy.

                 Bodily Injury
                 Coverage A
                Schedule of Coverages and Hazards Bases Rate Premium
                Coverages A and B
                 Division 1. Premises--Operations Estimated
                 Remuneration 29.52
                See Schedule Attached
                 Division 2. Elevators (Location Number
                 and Classification)
                Not Covered
                 Division 3. Independent Cost
                Not Covered
                 Division 4. Products--Completed Sales Per $1,000 Sales
                 Operations --------------------------------
                Not Covered

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* * *.'

The pertinent parts of the second or first inside page of the policy provide that Western 'agrees with the insured * * * subject to the limits of liability, exclusions, conditions and other terms of this policy:

'Insuring Agreements

'1. Coverage A--Bodily Injury Liability. To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury * * * sustained by any person, caused by accident and arising out of the hazards hereinafter defined. Coverage B--Property Damage Liability * * *

'Definition of Hazards

'Division 1--Premises--Operations. The ownership, maintenance or use of premises, and all operations.

'Division 2--Elevators * * *

'Division 3--Independent Contractors * * *

'Division 4--Products--Completed Operations. (1) Goods or products manufactured, sold, handled or distributed by the named insured or by others trading under his name, if the accident occurs after possession of such goods or products has been relinquished to others by the named insured or by others trading under his name and if such accident occurs away from premises owned, rented or controlled by the named insured or on premises for wich the classification stated in division 1 of Item 3 of the declarations excludes any part of the foregoing; provided, such goods or products shall be deemed to include any container thereof, other than a vehicle, but shall not include any vending machine or any property, other than such container, rented to or located for use of others but not sold; (2) operations, if the accident occurs after such operations have been completed or abandoned and occurs away from premises owned, rented or controlled by the named insured, provided, operations shall not be deemed incomplete because improperly or defectively performed or because further operations may be required pursuant to an agreement; provided further, the following shall not be deemed to be 'operations' within the meaning of this paragraph: (a) pick-up or delivery, except from or onto a railroad car, (b) the maintenance of vehicles owned or used by or in behalf of the insured, (c) the existence of tools, uninstalled equipment and abandoned or unused materials and (d) operations for which the...

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12 cases
  • Bourne v. Manley, 8807
    • United States
    • Missouri Court of Appeals
    • 4 Diciembre 1968
    ...judgment nisi should be affirmed if the trial court properly could have found for plaintiffs on either theory. Morris v. Western Cas. & Sur. Co., Mo.App., 421 S.W.2d 19, 21(1); Service Construction Co. v. Nichols, Mo.App., 378 S.W.2d 283, 290(12). Because of this and also because of the que......
  • Johnson v. National Union Fire Ins. Co. of Pittsburgh, Pa.
    • United States
    • New York Supreme Court
    • 10 Abril 1968
    ...17, 190 N.E.2d 597 (fireworks exhibitor); Kendrick v. Mason, 234 La. 271, 99 So.2d 108 (sewer line installer); Morris v. Western Casualty & Surety Co., 421 S.W.2d 19 (Mo.App.) (plumbing, heating and electrical contractor); Rafiner Elevator Works v. Michigan Mut. Liab. Co., 392 S.W.2d 240 (M......
  • Martinelli v. Security Ins. Co. of New Haven
    • United States
    • Missouri Court of Appeals
    • 21 Noviembre 1972
    ...the exercise of inventive powers for the purpose of creating an ambiguity when none exists." Dieckman, supra. See Morris v. Western Cas. & Sur. Co., Mo.App., 421 S.W.2d 19(6--9); Jordan v. United Equitable Life Insurance Company, Mo.App., 486 S.W.2d 664, 1972. Exclusionary clauses are to be......
  • Edmonds v. Stratton
    • United States
    • Missouri Court of Appeals
    • 23 Julio 1970
    ...affirmed if it can be sustained upon any reasonable theory. Hiatt v. Hiatt, Mo., 168 S.W.2d 1087, 1089(4); Morris v. Western Casualty and Surety Company, Mo.App., 421 S.W.2d 19, 21(1). This case started as a suit on 'a stated account.' Defendants' answer denied the account and convoyed a co......
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