The Scarritt Estate Co. v. Casualty Company of America

• Decision Date: 17 June 1912
• Citation: The Scarritt Estate Co. v. Casualty Company of America, 149 S.W. 1049, 166 Mo.App. 567 (Kan. App. 1912)
• Parties: THE SCARRITT ESTATE COMPANY, Respondent, v. CASUALTY COMPANY OF AMERICA, Appellant
• Court: Kansas Court of Appeals

149 S.W. 1049

166 Mo.App. 567

THE SCARRITT ESTATE COMPANY, Respondent, v. CASUALTY COMPANY OF AMERICA, Appellant

Court of Appeals of Missouri, Kansas City

June 17, 1912

Appeal from Jackson Circuit Court.--Hon. Joseph A. Guthrie, Judge.

AFFIRMED.

Judgment affirmed.

Boyle & Howell and J. S. Brooks for appellant.

(1) Appellant's instruction in the nature of a demurrer to the evidence should have been sustained. The policy did not cover loss from liability for injuries suffered by any person before the premises or elevator plant were completed ready for occupancy. The elevator plant was not completed ready for occupancy at the time of the injury. Donnell Mfg. Co. v Hart, 40 Mo.App. 512; Bestor v. Roberts, 58 Ala. 331; Rogers v. Kimball, 121 Cal. 247; Winton v. Meeker, 25 Conn. 456; Conn v Jones, 99 Ga. 608; Israel v. Reynolds, 11 Ill 218; Pioneer Co. v. Freeburg, 59 Minn. 230; Chase v. Hinman, 8 Wend. 452. (2) A recovery cannot be had on an indemnity bond, by an indemnitee who has not performed a covenant which by the terms of the contract is a condition precedent to any liability on the part of the indemnitor, and it is a good defense that plaintiff has not complied with essential conditions of the bond of indemnity. 22 Cyc., pp. 93 and 102.

Scarritt, Scarritt, Jones & Miller for respondent.

OPINION

JOHNSON, J.

--This is an action on a policy of insurance issued by defendant to plaintiff on June 1, 1907, by the terms of which defendant in consideration of a premium of $ 70 agreed to indemnify plaintiff "against loss by reason of the liability imposed by law upon the assured for damages on account of bodily injuries . . . suffered through an accident occurring during the term of this insurance policy, by . . any person . . not employed by the assured while in the car of any elevator mentioned in the schedule herein or while entering upon or alighting from such car or in the elevator well or hoisting of any elevator." Two elevators one a freight and the other a passenger were specified in the schedule annexed to the policy which stated that both elevators were "to be used for passenger purposes."

These elevators were in a new office building owned by plaintiff in Kansas City. The policy was signed by defendant's president and secretary, was "countersigned at Kansas City" by Hunter, Ridge & Bryant as the "duly authorized agents" of defendant at Kansas City and was delivered to plaintiff in that city. On July 6, 1907, Paul F. Shortridge, a boy eleven years old, accompanied his mother to the building on a business call she made on a lawyer who had offices in that building. While his mother was engaged in conversation the boy went to the end of the hall to the door of the freight elevator and, prompted by curiosity, put his head into the elevator well through an open panel in the door, and was struck on the head by the elevator car and injured. He brought suit against defendant to recover damages for his injuries on the ground that they were caused by negligence of plaintiff and recovered a judgment in the circuit court for four thousand dollars which, on appeal to this court, was affirmed. [See Shortridge v. Scarritt Estate Co., 145 Mo.App. 295, 130 S.W. 126.] His father and mother also sued plaintiff for their damages and recovered judgment for five hundred dollars.

Both of these judgments, together with costs and attorneys' fees, were paid by plaintiff and the purpose of the present suit is to recover of defendant the amount of the loss thus incurred on the ground that it falls within the protection of the policy to which we have referred. At all times since the accident defendant has denied liability, refused to defend the Shortridge suits and in its answer interposed defenses, the principal one of which is that the policy by its terms provided that defendant should not be liable for "injuries suffered by any person before the premises or elevator plant are ready for occupancy" and that neither the office building nor the elevator in question were ready for occupancy at the time of the injury.

A jury was waived and after hearing the evidence the court rendered judgment for plaintiff in accordance with the prayer of the petition and after unsuccessfully moving for a new trial and in arrest of judgment, defendant brought the case here by appeal. At the close of plaintiff's evidence defendant asked and the court refused a peremptory instruction. Defendant then introduced evidence and the cause was submitted by the parties to the court without a request from either party for findings of fact or declarations of law. We, therefore, are not advised by the record whether the court, which performed the double function of judge and jury in a law case found for plaintiff on the law or facts. Defendant does not claim that error was committed in the rulings on evidence and with the case in this posture it is our duty to sustain the judgment unless we should find it wholly unsupported by any reasonable theory of the case presented by the pleadings and evidence. [Rice v. McClure, 74 Mo.App. 383; Garrison v. Lyle, 38 Mo.App. 558; Rausch v. Michel, 191 Mo. 293.]

Taking up the point that the loss of plainti...