The Travelers v. Humming Bird Coal Co.

• Decision Date: 26 April 1963
• Citation: The Travelers v. Humming Bird Coal Co., 371 S.W.2d 35 (Ky. 1963)
• Parties: THE TRAVELERS, Appellant, v. HUMMING BIRD COAL COMPANY, Appellee.
• Court: Supreme Court of Kentucky

Page 35

371 S.W.2d 35

THE TRAVELERS, Appellant, v. HUMMING BIRD COAL COMPANY, Appellee.

Court of Appeals of Kentucky.

April 26, 1963.

Rehearing Denied Nov. 1, 1963.

Maxwell P. Barret, Hazard, for appellant.

A. E. Cornett, Hyden, Eugene Clark, Manchester, for appellee.

JOHN B. RODES, Special Commissioner.

This is a suit by Humming Bird Coal Company (owned by Charles Lewis and Ed Stansbury) engaged in the strip and auger mining of coal near Hyden, Kentucky, against The Travelers to recover under two policies of insurance, the first issued February 6, 1956 and covering the period from February 24, 1956 to February 24, 1957, and a renewal issued July 8, 1957 and covering the period from September 10, 1957 to September 10, 1958. Both policies describe the operation of the insured as that of surface mining and contain the same conditions and provisions. In consideration of a premium and in reliance on the statements, conditions and exclusions of the policy, the defendant Travelers agrees in both contracts under coverage B to:

'Pay to the insured all sums which the insured shall become legally obligated to pay as damages because of injury to or destruction of property, including the loss of use thereof, caused by accident and arising out of hazards hereinafter defined.'

Under Division I the hazard referred to is 'the ownership, maintenance or use of premises and all operations.' The amount recoverable in both policies to lessee for any single accident is $5,000.00.

The facts are simple enough. In October 1956 the Company began surface or strip mining on a mountain side near Hyden, Kentucky in Leslie County. The process was to bulldoze the surface until a bench or shelf was established 30 or 40 feet wide and about 600 feet above the highway at the base of the steep mountain slope. A large amount of earth and debris was removed and pushed over upon the slope of the mountain, with a depth of about 10 feet and with a width of 30 or 40 feet. With an auger the plaintiff Coal Company began to mine coal and continued until December 1956 and all machinery was moved away by March 1957. Prior to December 1956 the earth mass on the slope began to move or slip, not all at once but gradually and slowly until it reached the border line of the Melton farm below, overrunning Melton's water supply and damaging him seriously. The exact time this earth mass passed over the boundary of the Melton land is not known or at least not shown and the process may have taken weeks and even months, but it had its beginning before December 1956 and before the actual mining ceased on the hill. When Melton asserted a claim against the plaintiff Company, oral notice thereof was given to a Mr. Young, owner of an insurance agency in Manchester, who had originally issued the policies, and Mr. Young advised it would be taken care of and investigated.

On September 26, 1958 Melton filed suit against the plaintiff and its representative immediately notified Young, who in turn promptly notified the adjuster of the Travelers at Corbin, Kentucky. The latter investigated the loss and denied liability upon the grounds set out in the defendant's answer in this case and hereinafter referred to. As the Travelers refused to defend the case, the plaintiff upon the day the case was set for trial, settled it by paying to Melton the sum of $5,500.00. The settlement price was reasonable considering the nature and extent of the injury. Thereupon this suit was filed on September 26, 1958 and plaintiff was given judgment for $5,000.00 against defendant Travelers.

Several grounds of reversal are relied on. The first is the lower court failed to comply with Civil Rule 52.01 because the findings of fact were not sufficiently specific. In Clay's Kentucky Civil Rules, page 464, it is stated that the failure to make proper and sufficient findings is not jurisdictional and the Court of Appeals may consider the appeal in their absence. However they are sufficient 'if they indicate the factual basis for the ultimate conclusions'. (Page 465) While we do not approve the form of the findings of fact in this case, they support the conclusions of law and present no ground of reversible error.

The leading defense of defendant Travelers is that the injury to the Melton property was not an accident within the meaning of the policy. Here lies a misconception. The accident mentioned in the policy need not be a blow but may be a process. It is not required that the injury be the result of some contact with the bulldozer or the shelf or a rock hurled over from the shelf. It is not required to be sudden like an Alpine avalanche that upon a shout roars down with an overwhelming rapidity. A glacier moves slowly but inevitably. Where the accident is a process,...