Jahns & Knuth Co. v. American Indemnity Co.

The following opinion was filed December 11, 1923: Eschweiler, J. The question of' primary importance presented is as to whether or not the American Indemnity Company, appellant, can successfully defend because of the* clause purporting to eliminate liability for accident caused by elevator or hoist as found in the indorsement attached to the policy and above quoted. The firamework or structure erected in front of the building, being of the usual form and construction in general use for that kind of work and from which the hopper fell causing the accident, was certainly an elevator or hoist (there being no apparent or substantial difference in the meaning of these two words), as its purpose and use was to elevate or hoist building materials from the ground to the upper portions of the building. It was, however, clearly not a passenger, elevator or hoist or one into or from which passengers were expected to step. Its functions excluded its use for passengers; its use was merely temporary during the construction of the building. These features, so entirely distinct, separate, and easily distinguishable from the uses and purposes of a passenger elevator, make it of such a different class of structures, even though the same name may be used for it, from the well recognized class of passenger elevators, as to require our holding in accord with the trial court that it is not included in this relieving clause. This clause- is expressly aimed at excluding liability for injuries sustained by persons other than employees while entering or leaving the car of any elevator or hoist. This language concededly and plainly refers to a passenger elevator. The following provisions in the same rider are con [563] cerned with injuries caused by the existence or operation of any such elevator, well, or hoist-way thereof or the appurtenances or machineries used in connection with the operation of such elevator or hoist, and must properly and necessarily be construed to refer to such elevator or hoist as is first designated; that is to say, a .passenger elevator, and therefore not to such an appliance as was here used in construction work only. This provision, therefore, is no defense. Upon the trial the Indemnity Company, appellant, by proposed amendments to its answer, attempted to assert as defenses under the appropriate clauses in the policy set forth in the above statement of facts that there had been a violation by the insured of the regulations of the industrial commission with reference to the strength of the cable used in hoisting the hopper and of the ordinance of the city as to the strength and form of the canopy bhilt over the sidewalk. Immediately after the accident an examination was made by the appellant’s representative-and attorney, a report made by him to the company, and a definite stand taken as indicated in the above quoted portion of the letter to the insured, wherein the sole ground for denial of the liability on the part of the appellant Indemnity Company was the clause regarding the elevator' and which is above discussed. A full examination of the situation' was made at that time and ample opportunity afforded for further investigation if desired. A definite, positive, and precise stand was then taken by the company after full consideration, whereby it limited its grounds for denying liability to the one defense which is above discussed. Having so elected to stand upon that ground it ought not to be heard, after trial commenced, to assert other and different grounds, knowledge of which it had long prior to trial. It must be held to the stand it voluntarily assumed. Railway Co. v. McCarthy, 96 U. S. 258, 267; Littlejohn v. Shaw, 159 N. Y. 188, 191, [564] 53 N. E. 810; Grimwood v. Munson S. S. Line, 273 Fed. 166, 168; Ward v. Queen City Ins. Co. 69 Oreg. 347, 138 Pac. 1067. The appellant Indemnity Company also contends that the sums sought to be recovered in this case were paid by way of voluntary settlements of the claims made against the assured rather than upon final judgment after trial of the issues in accordance with the language quoted above and found in the policy. Long prior to such settlements, however, the Indemnity Company had deliberately breached its corresponding obligation in that regard by repudiating any liability whatsoever and expressly refusing, upon demand, to assume the defense of the actions brought against the assured. Plaving taken such position, it surely cannot now be heard to say that the assured, instead of making a reasonable and fair settlement (and it is conceded that such was the nature of the settlements), should have permitted such claims tó proceed to judgments and thereby ’incur’additional expense and possibly much larger liability for damages. St. Louis D. B. & P. Co. v. Maryland Cas. Co. 201 U. S. 173, 181, 26 Sup. Ct. 400; Royal Ind. Co. v. Schwarts (Tex. Civ. App.) 172 S. W. 581; Tighe v. Maryland Cas. Co. 218 Mass. 463, 106 N. E. 135; Fullerton v. U. S. Cas. Co. 184 Iowa, 219, 167 N. W. 700; Kutschenreuter v. Providence Washington Ins. Co. 164 Wis. 63, 159 N. W. 552. It is further claimed that the appellant is freed from liability because of the representation made in a clause of the contract above quoted to the effect that there was no elevator on the premises. The disposition we have made of the primary question here involved disposes of this also adversely to appellant’s contention. Some question is also raised as to the effect to be given to a certain so-called release executed by plaintiff’s predecessors subsequent to the accident on account of the supposed loss of the policy in question. We do not deem it necessary to [565] set forth the language in that document because it so plainly-concerned only the question of the issuing of a new policy to take the place of one claimed to have been lost that it does not need further discussion, and the conclusion of the trial court respecting it was clearly right. Finally it is contended that there is no proper proof of chain of title to this cause of action from the assured designated in the policy to the plaintiff corporation sufficient to warrant its right to recover. It is true there were no express words in the documents or proceedings transferring the business of the preceding copartnership to the present plaintiff specifically mentioning this transaction, yet the plaintiff’s assuming the assets and liabilities of the preceding partnership was at a time when, although claims had been asserted by the injured persons, yet the defense as to these claims had been assumed by the Milwaukee Company, and it was evidently then not considered that there was any definite obligation that would have to be assumed by the plaintiff or its predecessors in connection with such accident. Furthermore, the trial court permitted, and properly, formal documents to be executed during the trial to assign to or ratify and confirm in the plaintiff the necessary rights to maintain this action against the appellant, thereby carrying out the plain intent and purposes of the parties concerned. Other questions presented do not seem to require specific consideration. By the Court. — Judgment affirmed. A motion for a rehearing was denied, with $25 costs, on February 12, 1924.