Wertheimer-Swarts Shoe Co. v. United States Casualty Co.
| Decision Date | 18 February 1903 |
| Citation | 72 S.W. 635,172 Mo. 135 |
| Parties | WERTHEIMER-SWARTS SHOE COMPANY, Appellant, v. UNITED STATES CASUALTY COMPANY |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Jas. E. Withrow Judge.
Reversed and remanded (with directions).
Lyon & Swarts for appellant.
(1) The policy covers all damages caused by any accidental discharge of water, however caused, from the sprinkler system, not coming within the exceptions of clause 9 of said policy, upon the well-known maxim that "an exception expressly carved out of a general clause, leaves all other cases within the scope of the clause." Special provisions or exceptions limiting the operation of a contract of insurance, must be plain, specific and unambiguous. Ins. Co. v Lawrence, 10 Pet. 517; Louisville Underwriters v. Durland, 123 Ind. 544; Feibelman v. Ins. Co., 108 Ala. 200; American Surety Co. v. Pauly, 170 U.S. 133; Showalter v. Ins. Co., 3 Pa. Superior Ct. 448; Karow v. Ins. Co., 57 Wis. 68; Catlin v. Ins. Co., Sumner 434; Mickey v. Ins. Co., 35 Iowa 174; Guaranty Co. v. Mechanics' Bank, 80 F. 766. (2) The policy is one of indemnity, was prepared by the attorneys, officers and agents of the insurer, and will be construed most favorably to the insured. Renshaw v. Ins. Co., 103 Mo. 595; Cunningham v. Casualty Co., 82 Mo.App. 607; American Surety Co. v. Pauly, 170 U.S. 133; 1 May on Insurance, sec. 2. (3) Where the policy, as in this case, does cover a loss "resulting from or caused by the willful act of the assured," negligence of the assured or its employees is no defense. 2 May on Insurance (3 Ed.), secs. 408, 409, 411; Ins. Co. v. Glasgow, 8 Mo. 713; Mueller v. Ins. Co., 45 Mo. 84; Ins. Co. v. Martin, 32 Md. 310; Schneider v. Ins. Co., 24 Wis. 28; Ins. Co. v. Sullivan, 39 Kan. 449; Chaplain v. Railway Pass. Ass'n, 6 Lansing (N. Y.) 72; Keerne v. New England Acc. Co., 161 Mass. 152; Johnson v. Ins. Co., 86 Mass. 388; Devlin v. Ins. Co., 46 U. C. R. 111. (4) "Accidental" means happening by chance, unexpectedly or not according to the usual order of things. The leakage of water, caused in the manner admittedly shown by the facts, could not have been reasonably anticipated by Whittaker, the employee, and much less by appellant. Acc. Ass'n v. Barry, 131 U.S. 100; Lovelace v. Travelers' Prot. Ass'n., 126 Mo. 104; Ray on Negligence of Imposed Duties, pp. 133-4, and note on page 137; 2 May on Insurance, sec. 409, also pp. 924-929; Peoria Bldg. Ass'n. v. Loomis, 20 Ill. 235. (5) Instruction number 1, given by the court at the request of appellant, was not erroneous in failing to define "willful" (as contended by the respondent in the circuit court): (a) Because there was no evidence tending in the slightest degree to prove "willfulness." Jackson v. Ins. Co., 27 Mo.App. 62; Clack v. Southern El. Sup. Co., 72 Mo.App. 506; Brooks v. Railroad, 35 Mo.App. 571; Harrington v. Sedalia, 98 Mo. 583; State v. Grant, 152 Mo. 57; State v. Ferguson, 162 Mo. 668. (b) And because the case was tried before a special jury, summoned at the instance of respondent, and "jurors of ordinary intelligence will be presumed conversant with customary words of their vernacular, such as willfully." Sweeny v. Railroad, 150 Mo. 401; Feary v. O'Neil, 149 Mo. 475; State v. Harkins, 100 Mo. 671; Elevator Co. v. Cleary, 77 Mo.App. 298. (6) To entitle appellant to recover the amount fixed by the appraisement, it was only essential to show that the cash value of the property, at the time of the accident, did not exceed the sum of $ 75,000. This appellant did show, and by the very best of evidence. Huse & Loomis Co. v. Heinze, 102 Mo. 245; Burnet v. Ins. Co., 68 Mo.App. 343; Ins. Co. v. Richardson, 40 Neb. 1; Allison v. Chandler, 11 Mich. 542; O'Brien v. Benefit Soc., 117 N.Y. 310; Reed v. Ins. Co., 138 Mass. 572. (7) The case was fairly tried; the instructions were more than favorable to the respondent; the jury found the only verdict consistent with the evidence. It is immaterial what the instructions were, as the court should have given a peremptory instruction to the jury to find for the appellant. R. S. 1899, sec. 869; Cass County v. Bank, 157 Mo. 133; King v. King, 155 Mo. 406; Barkley v. Cemetery Ass'n., 153 Mo. 300; Henry v. Railroad, 113 Mo. 525; Baustian v. Young, 152 Mo. 317.
Percy Werner with whom is W. E. Fisse for respondent.
(1) The statement of the reasons for sustaining a motion for a new trial contained in the record of the court is controlling over a statement in the bill of exceptions. Ortt v. Leonhardt, 68 S.W. 578. (2) The motion for a new trial was properly sustained for errors in instructions given. (3) The first instruction given for plaintiff was erroneous because: (a) Upon the issue of plaintiff's failure to use all reasonable means to save and preserve the insured property it limited the jury strictly to occurrences on the Saturday night preceding the breakage of this sprinkler system. (b) It confined the jury to consideration of the negligent character of Whittaker's actions on this night, without giving to the jury a statement of facts necessary to support the allegation that he was negligent. (c) By insisting that plaintiff must have knowledge of this particular act of negligence on part of its employee before such negligence could be imputed to it, the court excluded from the jury all consideration of plaintiff's duty to advise and instruct its employees as to the danger of this sprinkler apparatus and the need of care to avoid injury to it. (d) The instruction as given practically exempts plaintiff from responsibility for the acts of its employees, even where these acts are negligent and reckless, even though such conduct of the employee arises out of ignorance concerning the nature of this sprinkler system, and notwithstanding that such ignorance is shown by the evidence to be the direct result of plaintiff's failure to warn its employees of the nature of this apparatus and the danger of tampering with it. (e) The instruction is directly contrary to the provisions of the policy. The policy demands that plaintiff shall use all reasonable means to save and preserve the insured property. This comprehends the entire course of the conduct of the plaintiff towards this sprinkler system, including its regulations for the conduct of its employees at work near the pipes of the system. The instruction, however, proceeds on the theory that plaintiff was under no duty to use care till after it acquired knowledge of some particular misconduct on part of an employee and limited its duty to the correction of that act of misconduct, exempting plaintiff from any obligation to use reasonable means by warnings and instructions of its employees to establish a course of proper conduct that would prevent meddling with this apparatus. The sprinkler was a dangerous machine and the duty of plaintiff to use care to prevent harm from it was correspondingly great. (f) The instruction by its treatment of the defense of willfulness, restrained the construction of the policy provision excluding liability for losses resulting from the willful act of plaintiff to losses produced, according to its deliberate design. The word "design" imports an intention to procure a particular result. The word "willful" imports only that the result is the effect of action deliberately taken, whether or not the result was intended or expected. The instruction therefore prevented and contradicted the words of the policy. (4) The fourth instruction given by the court is vague, misleading and inconsistent with itself, as well as inconsistent with the first instruction. (a) As drawn and first presented the instruction comprehended the whole conduct of the plaintiff in regard to this sprinkler, but as amended and given, the instruction was limited to a particular occasion in a course of alleged negligent conduct of plaintiff and its employees. (b) It was vague in its terms and erroneous in that it directed that in order to exempt defendant from liability it must be shown that plaintiff had knowledge of its own negligence as well as that of its employees. The instruction was without sense unless construed to mean that, under this policy, the plaintiff was not affected by any other negligence than the negligence of its chief officer. (5) The court should have given the peremptory instruction asked by defendant. (a) The evidence clearly showed that plaintiff had failed to use all reasonable means to save the insured property, because it altogether omitted to control the conduct of its employees so as to prevent wanton interference with the sprinkler, and also failed to warn them of the danger of any interference or meddling with this apparatus. (b) Because plaintiff failed to establish the actual value of all the property at risk at the date of the injury which produced its claim.
This is a suit on a policy insuring against the accidental discharge of an automatic sprinkling apparatus designed as a fire extinguisher, erected in plaintiff's establishment.
The terms of the policy covered loss or damage to the limit of $ 7,500 to property in plaintiff's shoe factory, caused "by the accidental discharge or leakage of water from the automatic sprinkler system" in plaintiff's place of business.
The petition set out the terms of the policy, and averred that plaintiff's goods were damaged to the amount named by the accidental discharge of the apparatus, etc.
The answer admitted the issuance of the policy, denied all other averments, and set up several affirmative defenses founded on certain clauses in the policy therein pointed out, viz clause 7, which requires the assured to immediately notify the company in writing of any known defect in the apparatus rendering it more than...
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