St. Louis Police Relief Ass'n v. Aetna Life Ins. Co.

• Decision Date: 07 October 1941
• Citation: 154 S.W.2d 782,236 Mo.App. 413
• Parties: ST. LOUIS POLICE RELIEF ASSOCIATION, A CORPORATION, RESPONDENT, v. AETNA LIFE INSURANCE COMPANY, A CORPORATION, APPELLANT
• Court: Missouri Court of Appeals

154 S.W.2d 782

236 Mo.App. 413

ST. LOUIS POLICE RELIEF ASSOCIATION, A CORPORATION, RESPONDENT, v. AETNA LIFE INSURANCE COMPANY, A CORPORATION, APPELLANT

Court of Appeals of Missouri, St. Louis

October 7, 1941

Motion for rehearing overruled October 24, 1941.

Rehearing Denied 236 Mo.App. 413 at 427.

Appeal from Circuit Court of City of St. Louis.--Hon. Frank C O'Malley, Judge.

REVERSED.

Judgment reversed.

Jacob M. Lashly and Lashly, Lashly, Miller & Clifford for plaintiff-respondent.

(1) The trial court correctly held that plaintiff (respondent) was and is entitled to recover from defendant (appellant) the amount paid by plaintiff to the General Accident, Fire & Life Assurance Corporation in satisfaction of the judgment rendered by the United States District Court in favor of said General Accident, Fire & Life Assurance Corporation, for the reason that: (a) The loss suffered by plaintiff by reason of having had to satisfy said judgment constitutes a valid basis for a claim by plaintiff against defendant, since the accident which resulted in loss to plaintiff occurred on the premises covered by and during the time which the indemnity insurance policy issued by defendant was in full force and effect, which policy expressly indemnifies plaintiff "against loss arising or resulting from claims against assured for damages on account of bodily injuries accidentally suffered or alleged to have been suffered by any person," even though plaintiff's liability for the damage to the person injured was enforced through the medium of a contract to indemnify another's outlay on account of the claim of the injured person. Harnden et al. v Southern Surety Co., 200 Mo.App. 162, 204 S.W. 34; Swanson et al. v. Georgia Casualty Co., 315 Mo 1007, 287 S.W. 455 (1926); Board of Trade Livery Company v. Georgia Casualty Co., 160 Minn. 490, 200 N.W. 633 (1924); 29 Amer. Jur., p. 796, sec. 1060. (b) The excepted risk clause contained in the indemnity insurance policy issued by defendant to this plaintiff which reads "save and except claims arising by reason of liability of others assumed by the assured under any contract or agreement, oral or written," has no application to the loss sustained by plaintiff (assured), in that the loss arose out of an accident for which this plaintiff was primarily liable. Board of Trade Livery Co. v. Georgia Casualty Co., 160 Minn. 490, 200 N.W. 633 (1924).

Wm. H. Allen for appellant.

(1) (a) Wendorf v. Mo. State Life Ins. Co., 318 Mo. 363, 370, 1 S.W.2d 99, 101, 57 A. L. R. 615, 619; State ex rel. Mutual Life Ins. Co. v. Shain, 126 S.W.2d 181. (b) Hewitt Pharmacies, Inc., v. Aetna Life Ins. Co., 267 N.Y. 31, 195 N.E. 673; Edinger & Co. v. Southwestern Surety Ins. Co., 182 Ky. 340, 206 S.W. 465; State ex rel. Mutual Life Ins. Co. v. Shain, 126 S.W.2d 181; Wendorf v. Mo. State Life Ins. Co., supra, 318 Mo. 363; State ex rel. Mutual Benefit H. & A. Ass'n v. Trimble, 334 Mo. 920; Hale v. Central Mfgrs. Mutual Ins. Co., 93 S.W.2d 271; Penn v. Travelers Ins. Co., 225 S.W. 1033; 1 Encyclopedia of Insurance Law, sec. 187, p. 390. (c) Soukup v. Employers Liability Assurance Corp., 341 Mo. 614; Missouri Dist. Telegraph Co. v. Southwestern Bell Telephone Co. et al., 336 Mo. 453, 462; Dolph v. Maryland Cas. Co., 303 Mo. 534, 546, 261 S.W. 330; Strong v. Phoenix Ins. Co., 62 Mo. 289, 295; Finkle v. Western Auto Ins. Co., 224 Mo.App. 285; Edinger & Co. v. Southwestern Surety Ins. Co., 182 Ky. 340, 206 S.W. 465; American Surety Co. v. Singer Sewing Machine Co., 18 F.Supp. 750; Alabama Title & Trust Co. v. Millsap, 71 F.2d 518; Gregg v. Page Belting Co., 69 N.H. 247, 46 A. 26; Buffalo Steel Co. v. Aetna Life Ins. Co., 156 A.D. 453, 141 N.Y.S. 1027, affirmed 215 N.Y. 638, 109 N.E. 1087; Cahill v. Standard Marine Ins. Co., 204 N.Y. 190, 198, 97 N.E. 486; B. Roth Tool Co. v. Casualty Co., 161 F. 709; American Candy Co. v. Aetna Life Ins. Co. (Wis.), 159 N.W. 917, 919; Enders v. Clarke, 43 Ohio App. 253, 183 N.E. 83, 84. (d) Soukup v. Employers Liability Assurance Corp., supra, 341 Mo. 614; Dolph v. Maryland Casualty Co., 303 Mo. 534, 546; Missouri Dist. Telegraph Co. v. Southwestern Bell Telephone Co., 336 Mo. 453, 462; Edinger & Co. v. Southwestern Surety Ins. Co., 182 Ky. 340, 206 S.W. 465; American Surety Co. v. Singer Sewing Machine Co., 18 F.Supp. 750; and other authorities cited under Point 1 (1), (c), supra. (2) American Surety Co. v. Singer Sewing Machine Co., 18 F.Supp. 750; Edinger & Co. v. Southwestern Surety Ins. Co., 182 Ky. 340, 206 S.W. 465; Cahill v. Standard Marine Ins. Co., 204 N.Y. 190, 198, 97 N.E. 486; Finkle v. Western Auto Ins. Co., 224 Mo.App. 285, 300; And other authorities cited under Point 1 (1), (d), supra. (3) (a) Said so-called finding of fact is a pure conclusion of law and is to be treated as such. A conclusion of law is nevertheless of such character because it happens to appear labeled as a finding of fact. Monnig v. Eastern Amusement Co., 27 S.W.2d 495; Platte Valley Bank of Cosby v. Farmers & Traders Bank, 223 Mo.App. 500. (b) McBride v. Mercantile Commerce Bank & Trust Co., 330 Mo. 259, 278; Korneman v. Davis, 281 Mo. 234, 246. (4) Edinger & Co. v. Southwestern Surety Ins. Co., 182 Ky. 340, 206 S.W. 465; Hewitt Pharmacies, Inc., v. Aetna Life Ins. Co., 267 N.Y. 31, 195 N.E. 673; Alabama Title & Trust Co. v. Milsap, 71 F.2d 518, and other authorities cited under Point 1, supra.

ANDERSON, J. Hughes, P. J., and McCullen, J., concur.

OPINION

ANDERSON, J.

--This is an appeal from a judgment for plaintiff, St. Louis Police Relief Association, in an action on a policy of liability insurance issued by appellant, Aetna Life Insurance Company, to plaintiff-respondent. A jury was waived, and the cause was tried before the court. The record discloses the following facts:

On December 10, 1924, respondent entered into a written lease with the St. Louis Coliseum Company, a corporation, under which respondent, as lessee, was granted the right to use the Coliseum building, in the City of St. Louis, for the purpose of holding therein a police benefit circus, for a term of 17 days, beginning April 11, 1925, and ending April 27, 1925. The seventh paragraph of the lease provided as follows:

"The said lessee shall indemnify and hold harmless the lessor from liability for personal injuries to any employes of said lessees, or to any other persons, from any cause whatsoever while said premises are occupied under this lease."

Prior to the holding of the police benefit circus, the St. Louis Coliseum Company sold the Coliseum building to the New Coliseum Company, a corporation, and, as lessor, assigned said lease and all of its rights thereunder to the New Coliseum Company.

Thereafter respondent took possession of the Coliseum building and, during the term of said lease, conducted therein its benefit circus. On April 13, 1925, and after respondent had taken possession of the building, appellant issued to respondent the policy of liability insurance here sued upon, by which policy appellant agreed to indemnify respondent, to the extent of $ 10,000, from April 13, 1925, to April 26, 1925, "against loss and/or expense arising or resulting from claims against the assured for damages on account of bodily injuries and/or death accidentally suffered or alleged to have been suffered by any person or persons, . . . (a) while within or upon the premises . . .; and (1) by reason of the ownership, maintenance or use of the premises . . ., (2) by reason of the business as described and conducted by the Assured at the locations named therein . . . save and except claims arising by reason of . . . 5. Liability of others assumed by the Assured under any contract or agreement, oral or written."

On April 24, 1925, Mary Cordes, while attending the benefit circus, fell down a stairway in said building and sustained personal injuries. Thereafter she filed suit in the Circuit Court of the City of St. Louis against the St. Louis Coliseum Company, the New Coliseum Company, and respondent, to recover damages for and on account of said injuries, alleging in her amended petition in said suit that her injuries were caused by the negligence of all of the defendants in permitting soda water bottle caps to be scattered and to lie upon the steps of said stairway, and by the negligence of said St. Louis Coliseum Company and said New Coliseum Company in causing and permitting said stairway to be and remain without handrails, in violation of an ordinance of the City of St. Louis, which ordinance is pleaded in said amended petition.

The appellant, Aetna Life Insurance Company, pursuant to the terms of the policy sued upon, defended the suit on behalf of respondent, St. Louis Police Relief Association, and effected a settlement for $ 3000 of the claim against the St. Louis Police Relief Association. Thereafter, on or about April 9, 1929, said suit was dismissed as to the St. Louis Police Relief Association.

At the time of the accident to Mary Cordes there was also in full force and effect a liability policy issued by the General Accident, Fire and Life Assurance Corporation Limited, a corporation, in which policy said company agreed to indemnify the defendant New Coliseum Company against loss by reason of liability imposed by law upon New Coliseum Compan on account of bodily injuries which might occur by reason of the ownership, care, maintenance, occupation, or use of said building and premises. Pursuant to the terms of this policy the General Accident, Fire and Life Assurance Corporation, Limited, defended the Mary Cordes' suit on behalf of the New Coliseum Company. A settlement agreement was reached between the attorneys for Mary Cordes and the attorney for the General Accident, Fire & Life Assurance Corporation, Limited, providing that in...