University City, Mo. v. Home Fire & Marine Ins. Co.

• Decision Date: 21 September 1940
• Docket Number: 11692.,No. 11691,11691
• Citation: 114 F.2d 288
• Parties: UNIVERSITY CITY, MO., v. HOME FIRE & MARINE INS. CO. SAME v. WESTERN FIRE INS. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

114 F.2d 288 (1940)

UNIVERSITY CITY, MO., v. HOME FIRE & MARINE INS. CO.

SAME v. WESTERN FIRE INS. CO.

Nos. 11691, 11692.

Circuit Court of Appeals, Eighth Circuit.

August 23, 1940.

As Modified on Denial of Rehearing September 21, 1940.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Marvin E. Boisseau, of St. Louis, Mo. (John W. Calhoun, of St. Louis, Mo., on the brief), for appellant.

Web A. Welker, of St. Louis, Mo. (Joseph H. Grand, James C. Jones, Jr., and Jones, Hocker, Gladney & Grand, all of St. Louis, Mo., on the brief), for appellees.

Before WOODROUGH and THOMAS, Circuit Judges, and BELL, District Judge.

THOMAS, Circuit Judge.

The plaintiff appeals from judgments for defendants entered in two suits upon fire insurance policies issued by the defendant companies. The issues were the same in both cases. By stipulation of the parties approved by the court it was agreed that the result in the suit against the Home Fire Insurance Company should abide the verdict in the trial of the case against The Western Fire Insurance Company. By a further stipulation both cases are presented here upon the same record. Accordingly, both appeals may properly be disposed of in one opinion.

The plaintiff's petition alleges that it is a municipal corporation organized under the laws of the state of Missouri; that on October 25, 1935, the defendant The Western Fire Insurance Company issued to plaintiff its policy of insurance whereby it agreed to insure plaintiff for a term of three years against all direct loss or damage by fire to a fireproof building owned by plaintiff, located on the north side of Delmar Boulevard, between Trinity Avenue on the west, and Oberlin (now known as Harvard) Avenue on the east, to an amount not exceeding $7,500; that on April 29, 1938, while the policy was in full force and effect, a fire occurred in the building insured by and described in the policy; that the building was damaged in an amount greatly in excess of the face of the policy; and that notwithstanding plaintiff's compliance with all the terms of the policy, the defendant has failed and refused to pay the amount of the policy and has denied that it is indebted to plaintiff in any amount whatsoever. A copy of the policy was attached to and made a part of the petition. The prayer is for judgment for the face amount of the policy, damages for vexatious refusal to pay, and for a reasonable attorney's fee.

The defendant's answer admits that it issued a fire insurance policy on "a fireproof building owned by plaintiff"; admits that Exhibit A, filed with plaintiff's petition, is a true and correct copy of the policy; admits that plaintiff notified it of a fire in a building owned by plaintiff; and admits that it has refused to pay plaintiff the amount of the policy. The defendant denies specifically that its policy insured plaintiff against all direct loss by fire to a fireproof building owned by plaintiff, located on the north side of Delmar Boulevard between Trinity Avenue on the west and Oberlin (now known as Harvard) Avenue on the east; denies that a fire occurred in the building insured by defendant; and denies that its refusal to pay is vexatious.

Pleading further the defendant alleges "That on or about the 29th day of April, 1938, a fire occurred in a building owned by plaintiff and situated on the west side of Oberlin Avenue, in the rear of the property mentioned and described in the policy of insurance issued by defendant to plaintiff and that said building was not covered by the aforementioned policy of insurance, and that defendant is not liable to plaintiff for and on account of any fire loss sustained by plaintiff on account of said fire in said building."

The policy attached to the petition provides for insurance

"On the fireproof building, located north side of Delmar Blvd. between Trinity & Oberlin Ave., known as 6801 Delmar Blvd., University City, Mo.

"This policy covers said building, including its attached platforms, including foundations, plumbing, electrical wiring and stationary heating, lighting, refrigerating and ventilating apparatus and fixtures, attached signs; stacks and awnings (covered under fire policies only), door and window screens, storm doors and windows; also all permanent fixtures, stationary scales, elevators and machinery therefor, all contained therein or thereon, and all while belonging to and constituting a part of said building."

The single issue raised by the pleadings is whether the fire occurred in the building described in the policy. The facts relative to the physical characteristics and use of the property owned by the plaintiff were introduced in evidence by both parties and are not in dispute in any particular. They are as follows:

The plaintiff municipality owns a block of land containing about four acres lying north of Delmar Boulevard and west of Oberlin, now called Harvard, Avenue, in University City, Missouri. It is bounded on the west and north by Trinity Avenue, which runs in a curve, giving the block the shape of a half moon, or the segment of a circle.

The somewhat peculiar design of the structure on this block gives rise to the dispute between the parties. It was constructed as one unit in 1903 by a publishing concern. The south portion, or that part standing directly adjacent to Delmar Boulevard, is octagonal in shape and rises five stories above the basement. The north portion is rectangular in shape, about 100 feet wide by 250 feet long. It is three stories high at its southern end, and drops to two stories and then to one story at its northern end. These two parts of the structure are connected by a corridor about 12 feet wide and 50 feet long. A pipe tunnel from the boiler room at the extreme north end of the rectangular portion of the structure runs under the rectangular part and the corridor portion and opens into the basement under the octagonal portion. The latter section is on higher ground than the connecting corridor and rectangular section. The first floor of the corridor connects the basement of the octagonal portion with the first floor of the rectangular portion of the structure. An open walk-way overhead the corridor permits access between the first floor of the octagonal portion and the second floor of the rectangular part.

The entire structure is fireproof. It was erected at one time upon one continuous foundation. The outside walls are brick and ornamented terra cotta, are integral and present the same architectural design or barricade treatment throughout the entire unit. All parts of the structure receive heat from a stationary heating plant located in the one-story section at the north end of the rectangular portion. The stack or chimney rises above the boiler room at that end of the structure. At one time it also housed the dynamos used in operating the elevators in the building. The whole structure has always been known as 6801 Delmar Boulevard, and mail has always been addressed to all the occupants at that number.

The whole property was originally used by the publishing concern. The south portion was used for offices and editorial rooms and the north portion for machinery and the mechanical requirements of the printing business. When built, the only public entrances to the building opened into the octagonal section, one off the corner of Delmar and Harvard (Oberlin) and one off the corner of Delmar and Trinity. An employees' entrance opened off Harvard (Oberlin) Avenue into the pressroom and a driveway at the extreme north end was used by vehicles hauling paper and coal to the building.

The plaintiff purchased the premises in 1930 and made certain alterations in it to adapt it to the uses of the city. The first four floors of the octagonal section are used for offices by certain departments of the city government. The fifth floor is leased to a tenant. The city health and sanitary, police and fire departments are housed in the south end of the rectangular section adjacent to the octagonal section. The north end of the rectangular section is leased to and occupied by the Orcutt Storage Company. A platform for the use of the Orcutt Company has been added to this section from which a walk runs to Harvard (Oberlin) Avenue. The city has also constructed a double garage between the two sections of the structure which is connected to the Arcade passageway on the east side. Cement driveways have been constructed from Harvard Avenue to the garage and to the part occupied by the police and fire departments.

The fire resulting in the loss for which recovery is sought occurred on or about April 29, 1938, in that part of the rectangular portion occupied by the Orcutt Company. The defendants denied liability on the ground that their policies covered only the octagonal portion of the structure.

In seeking a reversal of the judgments entered upon the verdict of the jury the plaintiff relies mainly upon two contentions: (1) that the court erred in admitting in evidence certain exhibits, and (2) that he erred in refusing to instruct a verdict in plaintiff's favor. Other minor matters are argued in the briefs, but they are all resolved by a determination of these two leading contentions.

1. Admission of exhibits. In order to bring into relief the questions arising in reference to the admission of exhibits, it is necessary to advert to the proceedings at the trial. The plaintiff attempted to show by the testimony of one Gantner, the insurance agent who procured the policies for the city, that he had been directed by the city council to obtain insurance on the structures as a unit and that he had so instructed the insurance brokerage firm with which he dealt and which issued the policies. His testimony was properly excluded on defendant's objection. Thereupon, the plaintiff having rested, the defendant offered in evidence exhibits 9, 10, 11, 12, 13, and 15, the nature of which will be explained later, and they were upon objection of counsel f...