Opinion
No. 41502.
May 9, 1960.
1. Insurance — contractor's liability policy did not include coverage for damages to elevator resulting from operation by contractor's employee.
Where definition of hazards in liability policy obtained by contractor employed to do repair work in building included use of any elevator designated in declarations but no elevator was designated in declarations, column in declarations for listing of elevators was not filled in and no premium was charged for such coverage, no elevator insurance was purchased and insurer was not liable for damage to elevator resulting from operation of it by contractor's employee.
2. Insurance — insurer, under language in contractor's liability policy, was not rendered liable for damage to elevator by contractor's employee.
Under policy excluding from property damage liability any injury to property occupied by insured or, except with respect to liability under sidetrack agreements or use of elevator, property in care, custody or control of insured, or property as to which insured was exercising physical control, such provision was not applicable where elevator insurance was not purchased by insured and insurer was not rendered liable for damage to elevator by insured's employee on basis of language dealing with exclusions.
Headnotes as approved by Gillespie, J.
APPEAL from the Circuit Court of Hinds County; LEON F. HENDRICK, Judge.
Sullivan, Sullivan Keyes, Jackson, for appellant.
I. Under the insuring agreements of insurance policy the defendant, C. Cotton Campbell, was insured against damages resulting from injury to or destruction of property in the care, custody or control of the insured or to property as to which the insured, for any purpose, is exercising physical control.
II. The policy not only did not exclude, but, on the contrary, it expressly included protection against the type of property damage complained of. Columbian Mutual Life Ins. Co. v. Craft, 186 Miss. 234, 185 So. 225; Fleming v. Travelers Ins. Co., 206 Miss. 284, 39 So.2d 885; Great American Ins. Co. v. Bass, 208 Miss. 436, 44 So.2d 532; Griffin v. Maryland Cas. Co., 213 Miss. 624, 57 So.2d 486; Interstate Life Acc. Co. v. Waters, 213 Miss. 265, 56 So.2d 493; Lumberman's Mutual Cas. Co. v. Broadus, 237 Miss. 387, 115 So.2d 130; New York Life Ins. Co. v. Blaylock, 144 Miss. 541, 110 So. 432; New York Life Ins. Co. v. Nessossis, 189 Miss. 414, 196 So. 766; Southern Home Ins. Co. v. Wall, 156 Miss. 865, 127 So. 298; Turner v. Fidelity Cas. Co., 112 Mich. 425, 70 N.W. 898, 38 L.R.A. 529, 67 Am. St. Rep. 428; United States F. G. Co. v. Citizens State Bank of Moorhead, 150 Miss. 386, 116 So. 605.
III. Dr. M.C. White should have been permitted to testify as to things pertaining to his trade or profession. 20 Am. Jur., Sec. 829 p. 696.
Watkins Eager, Jackson, for appellee.
I. Appellant's claim was not within the coverage of appellee's policy. Cauthen v. National Bankers Life Ins. Co., 228 Miss. 411, 88 So.2d 103; Goldstein v. Standard Acc. Ins. Co., 236 N.Y. 178, 140 N.E. 235; Griffin v. Maryland Cas. Co., 213 Miss. 624, 57 So.2d 486; Hardwood Mutual Cas. Co. v. Mason-Moore, Tracy, Inc., 194 F.2d 173; Hooley Sons v. Zurich General Acc. Liability Ins. Co., 235 La. 289, 103 So.2d 449; Lavender v. Volunteer State Life Ins. Co., 171 Miss. 169, 157 So. 101; Maryland Cas. Co. v. Holmsgaard, 10 Ill. App.2d 1, 133 N.E.2d 910; Mississippi Mutual Ins. Co. v. Ingram, 34 Miss. 215; New Amsterdam Cas. Co. v. Perryman, 162 Miss. 864, 140 So. 342; Travelers Fire Ins. Co. v. Price, 169 Miss. 531, 152 So. 889; Womack v. Employers Mutual Liability Ins. Co. of Wisconsin, 233 Miss. 110, 101 So.2d 107.
II. The trial court correctly excluded the testimony of Dr. M.C. White.
Appellants owned an office building and employed Campbell to do repair work therein. In order to enable Campbell to move some lumber from one floor to another, appellants permitted him to use an elevator. Campbell's employee had the exclusive use of said elevator for said purpose and in so doing negligently damaged the elevator. Appellants sued Campbell in the county court for said damages and recovered judgment. Appellants filed a suggestion of garnishment, suggesting that United States Fidelity Guaranty Company, appellee, was indebted to Campbell. Appellee answered denying any indebtedness to Campbell and showed in its answer that it had issued to Campbell a certain insurance policy but denied that the policy covered the damages to the elevator. The issue in the nature of a contest to the answer of appellee was tried, and the county court decided the issue in favor of appellee, the garnishee. Appellants appealed to the circuit court, where the judgment of the county court was affirmed. Appellants appeal here.
The policy issued by appellee to Campbell is a "Schedule Liability Policy." The policy contained the following insuring agreement:
"Coverage B — Property Damage Liability
"To pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of injury to or destruction of property, including the loss of the use thereof, caused by accident and arising out of the hazards hereinafter defined."
Under the heading, "Definition of Hazards" is the following:
"Division 1 — Premises — Operations
"The ownership, maintenance or use of premises and all operations.
"Division 2 — Elevators
"The ownership, maintenance or use of any elevator designated in the declarations."
(Hn 1) The declarations show that no elevator is designated therein. Attached to the "declarations" sheet is a "Contractor's Schedule" which was the only coverage purchased by Campbell, although many other coverages were available under the policy, including elevator coverage.
Under the heading of "Exclusions" the policy provides as follows: "This policy does not apply: . . .
"(1) under Coverages B and D, to injury to or destruction of (1) property owned or occupied by or rented to the Insured, or (2) except with respect to liability under sidetrack agreements covered by this policy, property used by the Insured, or (3) except with respect to liability, under such sidetrack agreements or the use of elevators, property in the care, custody or control of the Insured or property as to which the Insured for any purpose is exercising physical control . . . . . ."
No elevator insurance was purchased by Campbell because in that part of the policy headed "Declarations", the column for the listing of elevators was not filled in and no premium was charged for such coverage. The exclusions are standard provisions of the policy and were written to apply regardless of the types of coverage listed in the "Declarations."
(Hn 2) The use of the words ". . . except with respect to liability under sidetrack agreements or the use of elevators . . ." in paragraph 1 (3) of the "Exclusions" have no application to the present problem. If elevator insurance had been purchased the words quoted above would mean that the policy would cover the injury to or destruction of property in connection with the ownership, maintenance or use of the elevator even though such property is in the care, custody or control of insured, or as to which insured is exercising physical control. If the policy provided elevator coverage it would cover, for instance, the injury to or destruction of the property of third persons being conveyed in the elevator when the injury or destruction arises out of the ownership, maintenance or use of the elevator so covered. Such property would be in the care, custody or control of insured and insured would be exercising physical control over it while being conveyed in the elevator; and such property would be excluded from coverage but for the words "except with respect to . . . the use of elevators . . ."; and in any event such property would be covered only when elevator coverage is afforded by the policy.
From what has been said, the purpose of the use of the "except" clause in paragraph 1 (3) under "Exclusions" is apparent. And it seems clear to us that the damage to the elevator in question was not covered by the policy.
Affirmed.
McGehee, C.J., and Lee, Kyle and Ethridge, JJ., concur.