Smith v. Ryan
| Decision Date | 18 May 1962 |
| Docket Number | No. 2349,2349 |
| Citation | 142 So.2d 139 |
| Parties | Margaret Vance SMITH, Appellant, v. Eric A. RYAN, Appellee. |
| Court | Florida District Court of Appeals |
Mabry, Reaves, Carlton, Fields & Ward, Tampa, for appellant.
Thomas C. MacDonald, Jr., of Shackleford, Farrior, Stallings, Glos & Evans, and Hall, Farnsworth & Rousseau, Tampa, for appellee.
This appeal is upon a stipulated statement, pursuant to Florida Appellate Rule 3.6(h), 31 F.S.A., showing how the points to be presented arose and were decided. It sets forth only so many of the facts averred and proved, or sought to be averred or proved, as are essential to a decision of the points by this court. This procedure clearly focuses the court's attention to the points involved on the appeal and eliminates the immaterial matters often contained in the record.
Margaret Vance Smith and Eric A. Ryan entered into a contract, whereby Ryan agreed to furnish all labor and materials and do all things necessary to make certain structural changes in the residence of Smith and install therein an air-conditioning system. The contract was in two parts; one being an agreement between the contractor and the owner, and the other being the General Conditions of the Contract, Standard Form A2 (Revised 9-1-51) of the American Institute of Architects (A.I.A.). The owner Smith carried fire insurance on the premises, but the contractor Ryan was not named as co-insured, and the owner failed to so notify the contractor. A fire in the air-conditioning system, before completion of the contract, resulted in damages to the air-conditioning system and the residence. The owner's fire insurance carrier reimbursed the owner for all losses and then suit was instituted in the name of the owner, but for the use and benefit of the fire insurance company, against the contractor.
Plaintiff's claims are based upon allegations that the air-conditioning system was so negligently and defectively installed that it caught on fire and that the nature of the fire and damages was such as would not have occurred but for negligence in making the installation, in that said fire was not caused by lightning or acts of God or nature, and that had the system been properly and skillfully installed and wired, the fire resulting in damages would not have occurred.
The court entered summary judgment in favor of the defendant contractor, reciting that it was the opinion of the court that Articles 29 and 31 of the General Conditions of the Contract imposed an affirmative obligation upon the owner to procure fire insurance insuring the interest of both the owner and contractor, irrespective of the negligence of either, resulting in loss by fire. We affirm.
The effect of the court's ruling was, that the failure of the owner to comply with her agreement to provide fire insurance in which the contractor was named as an insured precludes her recovery against the contractor for the benefit of her insurer.
Pertinent provisions of the typewritten part of the contract headed 'Agreement Between Contractor and Owner' are as follows:
'* * * If anything in the said General Conditions is inconsistent with this Agreement, the Agreement shall govern.
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'The Owner agrees to reimburse the Contractor in current funds all costs necessarily incurred for the proper prosecution of the work * * *, such costs to include the following items, * * *.
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'(e) Losses and expenses, not compensated by insurance or otherwise, sustained by the Contractor in connection with the work, provided they have resulted from causes other than the fault or neglect of the Contractor. * * *
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'Any cost due to the negligence of the Contractor * * * shall be borne by the Contractor, * * *.
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'The title of all work completed and in course of construction * * * shall be in the Owner.'
The pertinent provisions of that part of the contract headed 'The General Conditions of the Contract for the Construction of Buildings,' in printed form, are as follows:
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