Rendelman v. Levitt

• Decision Date: 04 February 1930
• Docket Number: No. 21048.,21048.
• Citation: 24 S.W.2d 211
• Parties: RENDELMAN v. LEVITT et al.
• Court: Missouri Court of Appeals

24 S.W.2d 211

RENDELMAN v. LEVITT et al.

No. 21048.

St. Louis Court of Appeals. Missouri.

February 4, 1930.

Rehearing Denied February 19, 1930.

Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.

"Not to be officially published."

Proceeding under the Workmen's Compensation Act by Myron Rendelman, employee, opposed by I. M. Levitt, trustee, employer, the Metropolitan Casualty Insurance Company, and the Fidelity & Casualty Company of New York, insurers. From a judgment reversing the award of the Commission as to the insurer last named, and affirming it as to employer and insurer first named, claimant and insurer first named separately appeal. Affirmed.

C. O. Inman, of St. Louis, for appellant Rendelman.

Case, Voyles & Stemmler, of St. Louis, for appellant Metropolitan Casualty Ins. Co.

Wayne Ely, of St. Louis, for respondents.

SUTTON, C.

This is an action to recover compensation for personal injuries under the Workmen's Compensation Act (Missouri Session Laws 1927, p. 490). Plaintiff was injured on February 22, 1928. He was at the time in the employ of I. M. Levitt, trustee under a second deed of trust covering the Marquette Hotel, in the city of St. Louis. He was carrying a door from the second floor to the basement. The door slipped, and sprained his wrist. Complications developed so that the arm had to be amputated at the shoulder. The commission awarded compensation in favor of plaintiff and against all the defendants in amounts aggregating $2,614.76. On appeal to the circuit court, judgment was given reversing the award of the commission as to the Fidelity & Casualty Company and affirming it as to I. M. Levitt and the Metropolitan Casualty Insurance Company. From this judgment the plaintiff and the Metropolitan Casualty Insurance Company have perfected separate appeals, which have been consolidated here.

The only question raised here relates to the liability of the insurance companies. The Metropolitan Company insists that it is not liable, but that the Fidelity Company is, and that the court erred in affirming the award against the Metropolitan Company and in reversing it as to the Fidelity Company. Plaintiff insists that both companies are liable, and that the court erred in reversing the award as to the Fidelity Company.

On September 6, 1927, the Fidelity Company duly issued its workmen's compensation policy to Charles Hallenbeck, trading as Marquette Hotel Company, who owned and operated the hotel, covering his liability for compensation for accidental injuries to his employees in accordance with the Workmen's Compensation Act, for a term of one year. There was a first and a second deed of trust on the hotel and its furnishings. On February 1, 1928, Lawrence S. Day, as trustee under the first deed of trust, took charge of the hotel on account of default having been made in the payment of the debt or some part thereof secured by the deed of trust, and operated the hotel until February 10, 1928, when the holder of the second deed of trust paid the amount in default under the first deed of trust, and Day turned the hotel and all of its furnishings and assets in his possession over to I. M. Levitt, as trustee under the second deed of trust, for the purpose of foreclosure. Levitt operated the hotel until March 7, 1928, when it was sold at public sale under the second deed of trust to the Hurst-Levitt Corporation, which has owned and operated the hotel ever since. Samuel Levitt was the holder of the second deed of trust. On the day that I. M. Levitt took over the hotel property, he procured from the Metropolitan Company a workmen's compensation policy covering his liability as trustee for compensation for accidental injuries to his employees in accordance with the Workmen's Compensation Act, for a term of one year. The premium on the Fidelity policy was paid to the Fidelity Company by an insurance broker, who procured the policy for Hallenbeck, but it seems that the broker was never reimbursed by Hallenbeck, or any one else, for the premium he thus paid. The premium on the Metropolitan policy was never paid, but the policy was canceled on April 10, 1928, as of the date of its issue. It is said that this was done for the reason that the agents of the Metropolitan Company believed that the Fidelity policy was in force during the period that I. M Levitt operated the hotel, and that there was therefore a duplication of policies.

Some time after Day took over the hotel property as trustee, he applied to the Fidelity Company for a transfer of its policy to himself as trustee. The Fidelity Company made out a proper indorsement, assigning the policy as requested, and sent it to Hallenbeck to be signed, but he refused to sign, and there was never any acceptance of the indorsement by Day, and the indorsement was never completed. It seems, however, that the indorsement as prepared, but unsigned, was attached to the policy by the Fidelity Company on March 12, 1928. On the same date the Fidelity Company issued its indorsement dated March 7, 1928, amending the policy so as to make it cover the Hurst-Levitt Corporation, the purchaser at the foreclosure sale. This indorsement seems to have been in the nature or form of a transfer from Day to the Hurst-Levitt Corporation. Afterwards, in April, 1928, the Fidelity Company took up this policy, and issued in its stead a new policy to the Hurst-Levitt Corporation, giving said corporation credit for the unearned premium on the old policy after March 7, 1928. It appears that the Fidelity Company wanted to return the unearned premium for the period when Day and Levitt were in possession as trustees, but could find no one willing to accept it.

It is undisputed that plaintiff at the time of his injury was in the employ of I. M. Levitt as trustee. There was never an indorsement made, or an attempt to make an indorsement, assigning the Fidelity Policy to I. M. Levitt. It appears that Day voluntarily surrendered to Levitt possession of the hotel property with all the assets, cash, books, and accounts. This surrender was put in writing, but the insurance was not enumerated in the writing. It seems, however, that the Fidelity policy was in the safe amongst the papers surrendered to Levitt. Just when Levitt discovered the policy does not appear. The most reasonable inference to be drawn from the evidence is that he did not discover it until about the time of the foreclosure sale or afterwards. The Fidelity Company had no knowledge or notice that the possession and management of the hotel property had been turned over to Levitt, or that he was operating the hotel, or that its policy had been given into his possession, until after the foreclosure sale. Upon discovery of the duplication of policies, the policies were handed to an insurance broker by Samuel Levitt, who represented I. M. Levitt in the purchase of the Metropolitan policy, and who was connected with Hurst-Levitt Corporation in some official capacity, and also as a stockholder, with instructions to "straighten out the insurance." Pursuant to such instructions, the broker procured the cancellation of the Metropolitan policy on April 10, 1928. The Metropolitan Company afterwards billed Samuel Levitt for earned premium on the policy from February 10, 1928, to April 10, 1928. Levitt declined to pay this, insisting that earned premium was due only from February 10, 1928, to March 7, 1928, when the property was sold at foreclosure sale. It was testified, however, on behalf of...