Viking Automatic Sprinkler Co. v. Pacific Indem. Co.

• Decision Date: 29 October 1943
• Docket Number: 29145.
• Parties: VIKING AUTOMATIC SPRINKLER CO. v. PACIFIC INDEMNITY CO.
• Court: Washington Supreme Court

142 P.2d 394

19 Wn.2d 294

VIKING AUTOMATIC SPRINKLER CO. v. PACIFIC INDEMNITY CO.

No. 29145.

Supreme Court of Washington

October 29, 1943

Department 2.

Action by Viking Automatic Sprinkler Company against Pacific Indemnity Company on a liability policy. Verdict and judgment for plaintiff, and defendant appeals.

Reversed and remanded with direction.

Appeal from Superior Court, King County; Hugh C. Todd, Judge.

Skeel, McKelvy, Henke, Evenson & Uhlmann, of Seattle, for appellant.

Smith Matthews & Wilkerson, J. Speed Smith, and Henry Elliott, all of Seattle, for respondent.

BLAKE Justice.

This is an action upon a liability insurance policy which, by endorsement, contained the following provision: 'The Company agrees to insure the Assured against loss by reason of the liability imposed by law upon the Assured for damages (including damage resulting from loss of use of property damaged or destroyed), on account of damage to or destruction of property of any description caused solely and directly as a result of an accident occurring during the effective period of this endorsement by reason of and during the progress of the business operations of the Assured * * *.'

A major part of the 'business operations of the Assured' consists in the installation of automatic sprinkler systems in buildings.

During the effective period of the policy, plaintiff undertook to install a sprinkler system in a dry kiln erected by the Horton Cedar Manufacturing Company, Ltd., as a part of its plant near Victoria, British Columbia. In making the installation, it was necessary to shut off the water in order to connect up the new system with the one already installed serving other parts of the plant.

At the end of the day's work on March 11, 1941, the workman having completed one unit of the new system, turned the water on. He discovered a leak in an elbow which he had installed that day. He shut the water off again, and, having no other elbow nor plug to substitute for the broken elbow, he left the premises. With the water shut off, the sprinkler system was, of course, useless. That evening, at about eight o'clock, a fire started in the plant, causing some twenty thousand dollars in damage Before it was extinguished. There is evidence to the effect that, had the sprinkler system been in operation, the damage would not have exceeded four or five hundred dollars; indeed, there is no evidence to the contrary.

Of course, there can be no doubt about plaintiff's legal liability to the mill company for the entire loss. Acting on that theory, plaintiff arranged to settle with it for twelve thousand five hundred dollars. It notified the defendant of the arrangement and called upon it for indemnity under the terms of the policy quoted above. The defendant denied liability on the ground that the damage was not caused by an accident as contemplated by the terms of the endorsement. Plaintiff then instituted this action for the full amount (five thousand dollars) of the indemnity. The cause was tried to a jury, which returned a verdict for plaintiff. From judgment on the verdict, defendant appeals.

Appellant's assignments of error present, in general, two questions: (1) Whether the damage or loss was covered by the policy, and (2) whether the court erred in giving a certain instruction and in refusing to give certain requested instructions.

First. Appellant does not seriously question that respondent suffered a loss 'by reason of liability imposed by law,' nor that such loss was 'no account of damage to or destruction of property * * * occurring * * * by reason of and during the progress of the business operations of the Assured.' Appellant urges, however, that the damage was not 'caused solely and directly as a result of an accident.' In other words, appellant contends that the breaking of the elbow was not an accident in the ordinary sense of the word. It is argued that the elbow might have been defective, and that breaks occur more or less frequently in making installations. In any event, appellant takes the position that the fire, and not the break in the elbow, was the proximate cause of the damage and loss.

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. Now, in Webster's New International Dictionary (2nd Ed.), we find several definitions of accident, within two of which the breaking of the elbow, as testified to by the man who installed it, may fall: (a) 'an undesigned, sudden, and unexpected event'; (b) 'a mishap resulting in injury to a person or damage to a thing.'

That breaks in elbows sometimes occur in the course of installation makes the incident nonetheless unexpected when it does happen. One would hardly say the puncture of a tire was not an accident. Although, in a general way, a puncture may be said to be expected, yet, when it...