U.S. Fidelity & Guaranty Co. v. Briscoe

• Decision Date: 26 December 1951
• Docket Number: No. 34645,34645
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. BRISCOE et al.
• Court: Oklahoma Supreme Court

Page 754

239 P.2d 754

205 Okla. 618

UNITED STATES FIDELITY & GUARANTY CO. v. BRISCOE et al.

No. 34645.

Supreme Court of Oklahoma.

Dec. 26, 1951.

Rehearing Denied Jan. 15, 1952.

Syllabus by the Court.

Recovery on Contractor's Public Liability policy insuring against an accident cannot be permitted, where evidence wholly fails to show that damages or injuries were caused by an accident, but which were caused by insured unloading, loading and handling large quantities of dry, powdered, bulk cement, thereby impregnating the immediate and surrounding atmosphere with cement dust, for period of approximately four continuous months, thus creating a nuisance, with resulting damages, in road building project.

Monnet, Hayes, Brown & Bullis, all of Oklahoma City, for plaintiff in error.

A. R. Swank, A. R. Swank, Jr., and Chilton Swank, all of Stillwater, for defendants in error.

PER CURIAM.

This was an action by Jack Briscoe and Frank Briscoe, co-partners, doing business under the firm name and style of J. Briscoe Contractor, hereinafter called contractor, against the United States Fidelity & Guaranty Company, hereinafter called insurer, to recover attorneys' fees and expenses, incurred by the contractor in defending suits for damages, in District Court of Canadian County, Oklahoma, and allied litigation in United States District Court for the Western District of Oklahoma. Trial was to the court. Judgment was entered for contractor for sum of $1185.35, and insurer has appealed.

The suit arose out of the following facts, concerning which there is very little, if any, dispute: The contractor entered into a contract with the State of Oklahoma for construction of twelve miles of cement highway, leading northwest from Oklahoma City. The policy of insurance, written by insurer, was issued to cover operations of contractor, under its contract, with the State. It covered period from February 6, 1946 to February 6, 1947. The insuring clauses of the policy provided, as follows:

'To pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law, or assumed by him under contract as defined herein, for damages, including damages for care and loss of services, because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person or persons and caused by accident;'

'To pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law, or assumed by him under contract as defined herein, for damages because of injury to or destruction of property, including the loss of use thereof, caused by accident;'

'To defend, in his name and behalf, any suit against the insured, alleging such injury, sickness, disease or destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudulent.'

The contractor, in performance of general contracting business of constructing public cement highways, received approximately 120 carloads of bulk cement, or approximately 9600 tons, in 'hopper bottom cars' delivered onto side track, by the Rock Island Railroad, and used same in constructing said highway. The bottom of such cars opens, and the cement runs, by gravity, into a screw conveyor which takes cement to a bucket elevator. A canvas tube conveys cement from car to the screw conveyor. The bucket elevator carries it into the overhead tank, trucks drive beneath the tank, the proper amount dropped into open dump trucks, and hauled to point of highway construction. Contractor commenced using the cement loading mill on October 18, 1946, and its use continued through February 3, 1947, sometimes 24 hours per day. Bulk cement is dry and powdered. The Taylor family lived across the street from said cement mill, in Yukon, Oklahoma, their house being located about 35 steps from the mill. During such unloading process, the atmosphere, in that immediate vicinity, became impregnated with cement dust, to such extent, it caused the Taylor family inconvenience and damage, by permeating and saturating the air, including the house, clothes, food, rugs, draperies, plants, trees and shrubberies. It affected sinus trouble of some, and rendered condition of one, suffering with pneumonia, to become worse. Shortly after operations began, contractor received complaint of such conditions, followed by threats to institute legal action, whereupon, contractor sought to prevent escape of the cement dust by erecting burlap cloth all around the driveway and sides of the bin, but such efforts were not effectual, and said dust continued to escape and settle in, around and about said surrounding area, which also damaged paint of the buildings. Thereafter, two or three actions were instituted in District Court of Canadian County, by members of the Taylor family, based upon allegations of their petitions of nuisance, and sought recovery for damages, sustained by them, occasioned by cement dust filling the air, and settling upon their property, during said period. Rock Island Railroad Company also instituted a declaratory judgment action against contractor in U.S. District Court for Western District of Oklahoma, seeking indemnity from contractor for any liability adjudged against it, in the actions, filed by the Taylor family. It appears the Taylor actions were consolidated, and tried in Canadian County, resulting in a $3,000.00 judgment against contractor, but Rock Island Railroad was exonerated, by the jury. Upon motion for new trial, said judgment was vacated, it appearing the only jurisdiction of that court of contractor, rested upon its jurisdiction over the Rock Island.

When contractor was sued, in Canadian County, by the Taylors, contractor tendered the defense of those actions to insurer. Insurer declined to defend said actions, for the reason damages claimed therein, did not come within the terms of the insurance policy, and, was not an accident. When the cases were tried, in Canadian County, contractor was represented therein, by counsel of his own selection.

By its answer, insurer denied liability, admitted it had refused to defend the Taylor suits, and refused to handle the litigation in U.S. District Court for Western District of Oklahoma, contending such damages were not caused by accident, thus not covered by said policy of insurance. At conclusion of case, the court found the issues in favor of contractor, and rendered judgment, as prayed for, against insurer.

1. The insurer's assignments of error present, in general, but one question: Whether or not the injuries and damages, sustained by members of the Taylor family, were caused by accident. Insurer does not seriously question that contractor suffered a loss by reason of liability imposed by law, nor that such loss was on account of damage to or destruction of property, and, because of bodily injury, sickness or disease; however, insurer urges such damage was not caused by accident. In other words, insurer contends that contractor's diffusing and impregnating the air with cement dust, during said four months period, with resulting damage, was not an accident, within the ordinary sense of the word. The contractor asserts that: "Whether an injury is accidental, is to be determined from the standpoint of the person injured. If the injury comes to him through external force, not of his choice or provocation, then as to him the injury is accidental." Commercial Casualty Insurance Company v. Tri-State Transit Company, 190 Miss. 560, 1 So.2d 221, 223, 133 A.L.R. 1510.

The sole question for decision, on this appeal, is whether or not contractor's petition and proof constituted a case, such as insurer was obligated to defend, under the contract of insurance, sued on herein. That is to say, whether the proven and admitted facts are sufficient to show that damages to members of the Taylor family were caused by accident. The insurer is, of course, entitled to stand upon its contract, as written and the contractor must bring himself within the terms of the policy, before he can establish insurer's liability thereon. Imperial Fire Insurance Co. v. Coos County, 151 U.S. 452, 14 S.Ct. 379, 38 L.Ed. 231; Couch, Cyclopedia of Insurance Law, Vol. 1, Sec. 57; 14 R.C.L. Sec. 103, page 926.

In construing a contract of insurance, its terms and words, if unambiguous, must be accepted 'in their plain, ordinary and popular sense.' 14 R.C.L. 931, § 103, and, in this connection, there is no contention, by contractor, that there is any ambiguity concerning said contract.

Coming then to the question whether there is, in this record, any testimony tending to show that damages to members of the Taylor family were caused by accident, we confront again the troublesome inquiry: What is an accident? And, when is a means or cause accidental, within the meaning of the contract? It is not always easy to define a word,...