source: Caselaw Access Project

author: ANDERSON, Judge.

license: Public Domain

text:
    Lawrence WELKER, Employee, (Plaintiff) Respondent, v. MFA CENTRAL CO-OPERATIVE, Employer and MFA Mutual Insurance Company, Insurer, (Defendants) Appellants.
    No. 31477.
    St. Louis Court of Appeals. Missouri.
    June 15, 1964.
    Roberts & Roberts, Farmington, J. Richard Roberts, Hillsboro, for appellants.
    Spradling, Bradshaw & McHaney, John P. Bradshaw, Cape Girardeau, for respondent.
   ANDERSON, Judge.

This is a workmen’s compensation proceeding filed by Lawrence Welker against his employer, MFA Central Co-Operative of Perryville, Missouri, and its insurance carrier, MFA Mutual Insurance Company. The Referee found that said employee sustained an accident, but that the disability for which claim was made was not caused by said accident. On review the Industrial Commission, one member dissenting, reversed the Referee. The total amount of the award was $3,771.97. On appeal the Circuit Court sustained the Commission’s award. The employer and insurer appealed to this court.

It is alleged in the claim that the date of the accident was October 3, 1959; that the place where it occurred was Kasten’s farm near Uniontown, Missouri; that claimant suffered injury to his back and body as a whole; and that the exact nature of the injury was a ruptured intervertebral disc. It was also alleged that, “I was unloading 120 lb. sacks of seed wheat, and I was lifting them back over a row of fertilizer sacks on the truck and my foot slipped back as I picked one up, and I landed on my stomach kind of draped over the row of fertilizer sacks with my head toward the front of the truck and my feet toward the tail. Pain hit me when I fell on the fertilizer sacks and got so bad by the end of the day that I went to the doctor the following Monday.”

The answer of the employer and insurer was a general denial.

The sole point raised on this appeal is that the court erred in affirming the award of the Industrial Commission because there was no sufficient, competent evidence to support the award, for the reason that there was a failure to prove a causal connection between the accident and claimant’s injury.

Claimant was employed by MFA Central Co-Operative during the year 1959 as a truck driver. His duties were to deliver feed and other supplies. A part of his duties was to load and unload the truck he was assigned to drive.

On October 3, 1959, claimant made a delivery of feed to the Kasten farm, which is located about a mile and a half west of Uniontown. When he arrived at the Kasten farm he backed the truck to the granary to unload the order. In attempting to do so, it was necessary for him to reach over a row of fertilizer sacks in the back end of the truck in order to get the sack of feed. Claimant picked up the sack of feed with both hands, and as he started to lift it, became overbalanced and slipped. He immediately felt pain in’his back. Mr. Kasten then assisted claimant in unloading the feed. Thereafter he drove to the farm of Mr. Lueders to deliver the sacks of fertilizer. These were unloaded by Mr. Lueders. Claimant then returned to Perryville, put the truck in a shed and went home. He stated that he “laid around” the next day, which was Sunday. On Monday, October 5, 1959, he told Mr. Kephardt, the manager under whom he worked, about the incident, and then consulted Dr. Stanley G. Legner, a physician at Perryville. Claimant testified that he told Dr. Legner he had strained or hurt his back in some way; that Dr. Legner examined him, gave him some pills, and told him to go home and “take it easy.” Claimant was off work for about a week and a half. When he returned to work he had a helper to assist him to load and unload his truck.

On November 5, 1959, claimant drove his truck to the farm of Leroy Wills to make a delivery. He took hold of a sack of feed which was in the front end of the truck and pulled it to the rear. He then turned around to set it upright, at which time he experienced a severe pain in his back. On this occasion there was no slip or unusual movement of claimant’s body, except to bring his left hand around to help raise the sack. Mr. Wills and Mr. Schisler removed claimant from the truck and drove him to the MFA office in Perryville. They carried him from the truck to the office, and then to Dr. Legner’s office. Dr. Legner gave him a “shot” to relieve his pain, then sent him to the Perry County Memorial Hospital, where he remained under the care of Dr. Legner for one week. Thereafter he was taken to the St. Francis Hospital in Cape Girardeau, where he was under the care of Dr. Thomas G. Otto, an orthopedic surgeon. Claimant remained in St. Francis Hospital twenty-two days. He was thereafter treated by Dr. Otto in his office until about the middle of April. On May 1, I960, claimant went to work for a Mr. Fassold, where he was employed at the date of the hearing before the Referee.

Claimant testified that as far as he knew, his back was in good shape prior to October 3, 1959, but since that date he was unable to do the type of work he had been doing. He stated that on some days he would get along good, but on others, perhaps a day or two a week, his back would bother him to such an extent he could not sit still in the driver’s seat. The pain is in the lower part of his back. At the hearing he indicated a spot from one to three inches below the belt in the midsection of his back as the area where the pain strikes. After leaving the hospital claimant wore a corset, which Dr. Otto told him to wear. He wore this corset steadily until about two or three weeks before he started to work for Mr. Fassold. After that he only wore it once in a while when he would arise in the morning with a feeling that his back was going to bother him. Claimant testified that he did no heavy lifting on his present job, only light lifting. Mr. Fassold’s grandson does the heavy lifting for him. On one occasion claimant tried lifting a few sacks, but was unable to rest that night.

Dr. Stanley G. Legner was called as a witness by the employer and insurer. He testified that he had occasion to treat claimant on October 5, 1959. He stated that claimant was at the time complaining of low back pain and pain in both groins. The doctor further stated that claimant gave a history of having prostate trouble some five years prior; that Dr. Grayson took care of him at the time, and that his complaints then were about the same as those he had on October 5th, i. e., low back pain and pain in the groin. Dr. Legner examined claimant’s prostate and found it normal. He also made a urinalysis and found a mild cystitis, which meant that claimant perhaps had a mild infection of the bladder. He did not think a virus would cause back pain, but prostate trouble could. He testified that from his examination he established to his own satisfaction that his low back pain was not due to prostate trouble.

Dr. Legner further testified he had no record or recollection of claimant giving him a history of any traumatic incident preceding his visit of October 5th. The doctor again saw him on October 8th. The doctor stated that on that visit the urinalysis was negative, but claimant still complained of back pain. The doctor did not explore the cause of this pain. He stated he had no note in his record of prescribing bed rest, but in such cases he recommends limited activity, which he was sure he did in claimant’s case. The doctor took no X-rays at the time. The doctor had no recollection of setting a date for a return visit subsequent to October 8th.

Dr. Legner further testified that claimant was carried into his office by two men on November 5th, 1959. Claimant was unable to bend over. He complained of sudden pain in his back, which radiated down the left side of his back and down his left leg, stating that this occurred acutely while he was moving some feed bags. Dr. Legner further stated that the pain complained of on November 5th was different from the pain suffered in October, in that the pain in October was localized in the sacral area, while the pain in November went down the left leg to the foot. The doctor gave claimant a “shot” and sent him to the hospital, where he treated him until November 15, 1959, at which time he was transferred to St. Francis Hospital in Cape Girardeau, and placed under the care of Dr. Thomas G. Otto. Dr. Legner performed a myelogram and took X-rays in connection therewith. These showed suspicious evidence of a herniated disc at the fourth and fifth lumbar level, and Dr. Legner so diagnosed the claimant’s condition. The doctor testified that in his diagnosis he did not connect the complaints of October 5th with those of November 5th. Dr. Legner gave the following testimony:

“Q. Now when Mr. Welker was brought into your office in November did you then consider the question of any connection between this and the October episode for which he had been in?
“A. No, sir, because this was an acute onset and the pain was different from what he complained of in October. He complained only of pain in the sacral area or what we refer to as low back pain without any specific radiation in any area.
"Q. There was still low back pain on the second episode in November, was there not?
“A. When he came in on the 5th of November?
“Q. Yes, sir. A. He had an acute pain starting in his back but this pain was radiating to the left leg and left hip. * * *
“Q. Was it the same area of the back he complained of previously, same part of the back?
“A. It started in the same area but it was on one side. It was a left sided pain whereas before it was just a general pain across his back. It was not a severe pain but an aching pain across his back. In other words, it covered the whole low back area.”

Dr. Legner further testified that there was nothing in the history or the examination in October which indicated a disc involvement or ruptured disc. He stated:

“ * * * on that occasion I didn’t
feel that there was any disc symptoms present at that time because the pain was strictly a local pain to the lumbar sacral area. There was no evidence of pain on raising the leg, stooping, bending and coughing, which would indicate typical disc pain, shooting pain, due to physical signs.”

Dr. Legner further testified that, based on the history given and his examination of claimant, he concluded that claimant had a ruptured disc on November 5th, and that the onset of the pain present on that occasion had been almost immediately before he saw claimant. The doctor was then asked if there were different degrees of disc involvement. In answer to the question he stated: “Yes, it depends on the severity of the herniation, of the herniation itself, how severe it is, and also whether it is a long standing thing or whether it is an acute thing and how the symptoms will affect a person.” There then appears in the transcript the following question put to the doctor: “Q. Doctor, is it possible that the complaint made by the patient to you on October 5th, the first visit to you, could have been the result of a mild herniation in this same area ?” The doctor answered by saying it was possible, but that the complaint made by claimant on October 5th did not impress him as being the type of pain associated with a herniated disc.

Claimant offered in evidence the deposition of Dr. Thomas G. Otto, who had treated claimant at the St. Francis Hospital in Cape Girardeau. Dr. Otto was an orthopedic surgeon. He first saw claimant on November 15, 1959. At that time claimant gave a history of having pain in his lower back region, which began about October 7, 1959. This pain was centered in the lumbar sacral region. At the time of the onset he was driving a truck hauling feed. He was unloading feed. The doctor further stated that claimant told him there was no particular fall or twist, but the pain just developed while he was doing this work. Further reciting the history, Dr. Otto stated:

“He was seen by his family physician in Perryville, the place of his residence, who was Dr. Stanley Legner. Dr. Legner treated him on what would be described as a conservative basis or by medical management and after several days of rest he was able to return to work. He returned to work and was working with a helper at delivery, and the second day after he returned to work he developed acute pain in the low back region with radiation of the pain into the left leg. This was on November 4, 1959. The pain was so severe that it was necessary for him to be admitted to the hospital at Perry-ville, Missouri, and he had been in the hospital at Perryville, Missouri, from November 5, 1959 to November 15, 1959, at which time I was consulted by Dr. Legner and the patient was transferred to St. Francis Hospital.”

The doctor was confused as to the dates of the two episodes involved, referring to the first as occurring on October 1st, instead of October 3rd, and the second as occurring on November 4th instead of November 5th.

Dr. Otto further testified that he made a diagnosis of herniated disc. This diagnosis was not based on the myelogram and X-rays performed and taken at the Perry-ville Hospital, which he said did not show positive evidence of a herniated disc but, on the usual tests given, straight leg raising together with the man’s reaction to those tests and the localization of pain, a combination of objective and subjective symptoms.

Dr. Otto last saw claimant on January 31, 1961, at which time the doctor considered that the patient had responded to conservative treatment, and that his condition was stable without aggravation for a period of time dating from May 19, 1960, to January 31, 1961. By “stable” the doctor meant that the patient had improved to the extent that he was able to do some of his work without aggravation of pain to the severe degree he had at the onset of his condition.

Dr. Otto further testified that it is possible for one to have a herniated disc without a fall or twist, and that claimant’s condition could have occurred in the manner related in his history. The following question and answer appear in the transcript: “Q. Dr. could the episode that occurred on October 1, 1959 have teen the initial causal factor in this condition in his back? A. Yes.”

A question was then put to the witness which, after assuming the facts brought out in the evidence with respect to the alleged accident of October 3, 1959, contained the following inquiry:

“ * * * Could you then with any degree of reasonable medical certainty state that it is probable that this episode on October 1, 1959 caused the herniation? * * * A. Yes.
“Q. What is your opinion on that, Dr. ? A. I think it could have.
***** *
“Q. Now Dr. if the patient had undergone an episode on October 1, 1959 as hypothesized here in hypothetical question as corrected, then returned to work within a period of time between October 1, and November 4, 1959, could he spontaneously on November 4, 1959, have developed the pain in the low back radiating into his left leg? A. Yes.
“Q. Did he in his history of the second episode recite whether or not this pain was radiated into his left leg, just came about or did he give you any indication of anything that might have caused it?
“A. No, he did not, it just came about while he was working.”

Appellants’ assignment of error on this appeal is that the trial court erred in affirming the award of the Commission for the reason there was not sufficient competent evidence in the record to warrant said award. In support of this contention it is urged that the evidence fails to establish a causal connection between the accident of October 3rd and the condition which developed on November Sth for which compensation was awarded.

Appellant does not challenge the Commission’s finding that on October 3, 19S9, claimant sustained an accident arising out of and in the course of his employment. Claimant testified that he slipped while unloading a sack of feed at the Fasten farm. It is conceded that this testimony was sufficient evidence, if believed, to carry the burden of proof of accident which under the law rested upon claimant, although there was testimony by both doctors that claimant gave to them no history of traumatic incident having occurred on October 3rd. It is also important to note that claimant does not maintain there was an accident on November 5th when he suddenly suffered the pain which the doctors diagnosed as having been caused by a herniated disc. His entire claim for compensation is based on the accident of October 3rd, as is the Commission’s award.

Dr. Legner testified he did not consider there was any connection between the complaints of October 3rd and the condition he diagnosed as a herniated disc on November 5th. He gave as his reasons the fact that the October pain in the lumbar sacral area was strictly local without radiation, while the pain experienced cn November 5th was on one side of the back and radiated down the left hip and left leg. In October there was also absent evidence of pain on leg raising, stooping, bending and coughing which symptoms would be present if there was a disc involvement. His opinion was that the onset of the pain experienced by claimant had its onset immediately before he saw claimant on that occasion. When asked if it was possible that the complaint made by claimant on his first visit could have been the result of a mild herniation, the doctor answered that it was possible, but it did not impress him as being associated with a herniated disc. This testimony was not sufficient to establish a causal connection between the accident which occurred in October and the herniated disc which the doctors diagnosed as being present in November. Expert evidence that it is possible that an act could have caused a certain result is admissible as an assurance that such result was scientifically possible, but is not, standing alone, substantial evidence that the act did cause such result. O’Leary v. Scullin Steel Co., 303 Mo. 363, 260 S.W. 55; Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 644; Wack v. F. E. Schoenberg Mfg. Co., 331 Mo. 197, 53 S.W.2d 28.

Claimant contends that the answers given by Dr. Otto to the hypothetical question, heretofore mentioned, established that it was probable the accident caused the herniated disc, and, therefore, showed the necessary causal connection between the accident and injury. However, a consideration of these answers, and the entire testimony of the witness, does not reveal an opinion of probability but rather one of possibility. His final answer was, “I think it could have.” This is not sufficient to establish causal connection under the above mentioned authorities. But even construing his answers as expressing an opinion that it was probable that the October episode caused the herniated disc which manifested itself on November 5th, causal connection is not established. For such an answer does not amount to testimony so conclusive as to authorize a finding that the herniated disc was caused by the accident. It indicates uncertainty, and would leave a finding on the issue to speculation and conjecture. The word “probable” has been defined many times as appearing to be founded in reason and experience which inclines the mind to believe, but leaves room for doubt. See Black’s Law Dictionary, (3rd Ed.) and Vol. 34, Words and Phrases.

Claimant also contends that causal connection need not be shown by expert testimony, but in this case may be inferred from the facts testified to by claimant and the lay witnesses. He does not point out the testimony which he considers sufficient in this respect. We cannot agree with claimant. In this case we do not have a situation where the herniated disc occurred at the time of the accident or immediately following it. There was a month elapsed between the two events, and during that interval there was absent the classic symptoms of a herniated disc, extreme pain in the back which radiated into the hip and leg. Claimant went back to work after being off a week and a half, and was not in great pain as a result of the accident. Dr. Legner described it as an aching pain across the back. Dr. Otto testified that the herniated disc could have occurred without a twist or fall. Claimant at the time he suffered the severe pain on November 5th was engaged in unloading a sack of feed. He had pulled the sack to the rear of the truck when the pain struck him. Under the circumstances no layman could know or have any reasonable basis for an inference that the herniated disc was the result of the accident. We think the question of causation was one for medical testimony, without which a finding for claimant would be based on mere conjecture and speculation and not on substantial evidence. Gulley v. Spinnichia, Mo.App., 341 S.W.2d 301.

Since claimant introduced the deposition of Dr. Otto who testified that the herniated disc could have occurred without a twist or fall, and since claimant testified that just before he suffered the severe pain on November 5th he had pushed a sack of feed to the rear of the truck, the most that can be said in claimant’s behalf is that he has shown the injury to have resulted from one or the other of two causes, for one of which, and not the other, appellant is liable. In such a case claimant has not met the burden of proof which the law casts upon him. Seabaugh’s Dependents v. Garver Lumber Mfg. Co., 355 Mo. 1153, 200 S.W.2d 55, 1. c. 62. Claimant’s argument that under § 287.800 RSMo 1959, V.A.M.S., all doubts must be resolved in favor of the employee does not extend to the authorization of a claim lacking some essential element required by' law. Ossery v. Burger-Baird Engraving Co., Mo., 256 S.W.2d 805.

On the whole record, we hold that the evidence was insufficient to reasonably show that claimant’s injury resulted from the accident which he sustained on October 3, 1959.

The judgment of the Circuit Court is reversed, and the cause is remanded with directions to the court to set aside its' judgment and enter a new judgment reversing the Award of the Industrial Commission and to remand the cause to the Industrial Commission with directions to it to enter its Award in favor of the employer.

RUDDY, P. J., and WOLFE, J., concur.


author: DOERNER, Commissioner.

text:
    WORLD INVESTMENT COMPANY, a Corporation, (Plaintiff) Respondent, v. MANCHESTER INSURANCE & INDEMNITY COMPANY, a Corporation, (Defendant) Appellant.
    No. 31431.
    St. Louis Court of Appeals. Missouri.
    June 15, 1964.

      Goldenhersh, Goldenhersh, Frederichs, Newman & Lane, Leo M. Newman, Frank J. Lane, Jr., St. Louis, for defendant-appellant.
    Armstrong, Teasdale, Roos, Kramer & Vaughan, William H. Webster, Bruce E. Woodruff, St. Louis, for plaintiff-respondent. ,
   DOERNER, Commissioner.

This is an action on an automobile insurance policy to recover for a loss resulting from a claimed theft of the car. Defendant appeals from a judgment which, after remittitur of amounts awarded by the jury for vexatious delay and attorneys’ fees, is for $2182, together with interest thereon of $327.84, or a total of $2509.84.

The material facts are these: On October 17, 1957, Keith L. Milburn, a self-employed trucker who resided in East St. Louis, Illinois, purchased from East Side Motors, Inc., of that city, under a conditional sale contract, a new 1957 Cadillac sedan. After credit for a trade-in the balance owed by Milburn was $4805. The conditional sale contract executed by Milburn provided that the title to the car was not to pass to him until he completed payment of 29 monthly installments of $105 and a final monthly payment of $1760, the first to be due on November 17, 1957.

On the same day the conditional sale contract was signed by Milburn, or shortly thereafter (the exact date is not in evidence), East Side Motors executed an assignment printed on the instrument, whereby it assigned the conditional sale contract to plaintiff World Investment Company of St. Louis. Milburn paid World Investment the monthly installments of $105 as they fell due, including that for November, 1959. Because of business reverses he had suffered, Milburn found that the payments were becoming too heavy a financial burden, and decided to “trade-down” for a less expensive car. After contacting numerous other used car dealers in St. Louis and East St. Louis, Milburn called on Roberts Auto Sales of St. Louis on November 28, 1959, where he talked to a salesman named Lou Skelton. When Skelton was told the object of Milburn’s visit and the balance due, Skelton stated that there was too much owed on the Cadillac for a trade-down. Skelton offered, instead, to sell Milburn an older car and to endeavor to find a buyer for the Cadillac. The end result was that Milburn purchased from Roberts Auto Sales a 1955 Buick for a down payment of $20 and monthly payments of $36; and Milburn delivered his Cadillac to Skelton on the understanding that Skelton would find a purchaser of it at a price which was to be subject to Milburn’s approval, and sufficient to pay off the amount owed World Investment. According to Milburn it was agreed that the car was not to be taken off of the lot except for demonstration purposes, in which event Skelton was to accompany the prospective purchaser. Milburn testified that Skelton also promised that he would pay World Investment any installment that fell due before the Cadillac was sold, and Milburn agreed that if there was any profit made on the sale of the automobile, it would be split between them. On the foregoing understanding Milburn delivered the Cadillac and the keys thereto to Skelton.

Thereafter Milburn telephoned Skelton once to ascertain what progress was being made, and late in December, 1959, Skelton stopped by Milburn’s home to tell him that no buyer had been found, but that several persons were interested in the car. The evidence indicates that on December 14, 1959, Skelton paid World Investment the installment then due. After the January, 1960 installment fell due and became delinquent, World Investment wri te Milburn demanding payment. Milburn telephoned Roberts Sales and was told that Skelton had not been there for a week and had taken the Cadillac with him. Subsequent extensive efforts by Milburn and Wofld Investment to locate Skelton or the car, through the police, the Federal Bureau of Investigation, and other sources, were of no avail.

At the time Milburn first purchased the car he obtained an automobile physical damage policy of insurance, which insured him for one year. The policy was renewed each year, that in suit covering the period from October 16, 1959 to October 16, 1960. Mil-burn and his wife, Shirley, were named therein as insureds, and it was further provided in the appropriate space in the policy: “Loss Payee: Any loss hereunder is payable as interest may appear to the insured and World Investment Co.” As stated, coverage under the comprehensive coverage clause of the policy included loss by “theft.” The policy also contained an exclusion clause which provided that the coverage did not apply “to loss due to conversion, embezzlement or secretion by any person in possession of the automobile under a bailment lease, conditional sale, purchase agreement, mortgage or 'other encumbrance; * * The amount owed by Milburn on the conditional sale contract at the time he learned of the loss, including the January, 1960 installment, was $2182, the sum for which World Investment sued, together with interest thereon.

Defendant’s primary point is that there was no evidence of a “theft” of the automobile within the meaning of that word as used in the policy. Defendant equates the term “theft” with that of “larceny,” and maintains that since Milburn voluntarily, delivered the car to Skelton, there was no felonious taking, an essential element of larceny. Cox v. World Fire & Marine Insurance Co., Mo.App., 239 S.W.2d 538, and Eiswirth Construction & Equipment Co. v. Glenn Falls Insurance Co., 241 Mo.App. 713, 240 S.W.2d 973, arc cited by defendant, but those cases furnish no'support, for defendant’s position. For example, in Cox v. World Fire & Marine Insurance Co., supra, we said that in construing a contract of insurance its words must be given the ordinary meaning that they carry in common usage. Wendorff v. Missouri State Life Insurance Co., 318 Mo. 363, 1 S.W.2d 99, 57 A.L.R. 615. In Eiswirth Construction & Equipment Co. v. Glenn Falls Insurance Co., supra, we held that the word “theft” as used in the policy must be interpreted in its plain, ordinary and popular sense, and not in a technical sense; and that as generally and commonly used and understood it conveyed the same meaning as the term “steal.” And that word, as we pointed out, in its popular and broader or colloquial sense may signify a wrongful conversion as well as an unlawful taking.

We adhere to the view expressed in those cases that where, as here, there is no definition of the word “theft” in the policy it must be given that connotation it conveys in popular and common usage. We cannot agree with defendant, therefore, that the word is synonymous with that of “larceny.” If they have precisely the same meaning then why, we may ask, did defendant employ both in the phrase “theft, larceny, robbery or pilferage,” which appears in another paragraph of the contract? The use of both would indicate that defendant believed there was a distinction between them when it wrote the policy. We think there is, and share the view expressed in Blashfield, Cyclopedia of Automobile Law & Practice, Perm.Ed., Vol. 6, Part 1, § 3712, p. 316, that “ ‘Larceny,’ it has been pointed out, is a technical term, while ‘theft’ is one of common usage.” As various standard dictionaries point out, in popular usage “theft” is a broader term than “larceny” and includes other forms of the wrongful deprivation of property, including conversion and embezzlement. 3 Bouv. Law Dictionary, Rawles 3rd Ed., p. 3267; Black’s Law Dictionary, 4th Ed., p. 1648; Merriam-Webster New International Dictionary, 2nd Ed., p. 2618.

We stated in Eiswirth Construction & Equipment Co. v. Glenn Falls Insurance Co., supra, that we do not regard the word “theft” as used in a similar policy as an ambiguous term. It would avail defendant nothing if we did. For it is the long established law of this state that where there is doubt or uncertainty as to the meaning of language used in a contract of insurance, one favorable to the insured and the other favorable to the insurer, that which is favorable to the insured will be adopted. Cain v. Robinson Lumber Co., 365 Mo. 1238, 295 S.W.2d 388; Pierce v. Business Men’s Assur. Co. of Amer., Mo., 333 S.W.2d 97; Wendorff v. Missouri State Life Insurance Co., 318 Mo. 363, 1 S.W.2d 99. We have concluded, therefore, that plaintiff’s evidence was sufficient to make a submissible case on the issue of whether a theft of the automobile was committed. We believe that conclusion accords with the majority rule as stated in the exhaustive discussion of the subject to be found in 48 A.L.R.2d 12, et seq. It is also in accord with our present statutory definition of the word “steal,” Sec. 560.156 RSMo.1959, V.A.M.S. But for the purpose of this case we prefer to rest our decision on the grounds stated.

Defendant next points to the exclusion clause in the policy and argues that its apparent intent was to exclude coverage when the insured voluntarily relinquished possession and control of the automobile to another whose character was unknown to defendant. But the exclusion clause obviously is not that broad. Compare Mock v. Missouri Union Insurance Co., Mo.App., 328 S.W.2d 61. It provides that the policy does not apply when the insured has relinquished possession to another under some form of encumbrance, as a bailment lease (what we usually term a lease-purchase agreement, see Words and Phrases), conditional sale contract, or mortgage. Mil-burn did not deliver possession to Skelton under an encumbrance; it was given under a bailment for the purpose of finding a purchaser. If defendant desired an exclusion clause as broad as that involved in Mock v. Missouri Union Insurance Co., supra, it should have written one into its policy. We certainly have no authority to rewrite defendant’s contract for it. Prange v. International Life Insurance Co. of St. Louis, 329 Mo. 651, 46 S.W.2d 523, 80 A.L.R. 950; State Mut. Life Assur. Co. of Worchester, Mass. v. Dischinger, Mo., 263 S.W.2d 394.

When Milburn bought the Cadillac from East Side Motors Inc. in 1957 he signed the conditional sale contract, but instructed the dealer to have the title put in his wife’s name to protect it from liability in case his business should fail. East Side Motors so registered the car, but kept the certificate of title in its possession until the car disappeared, when plaintiff obtained it and first learned that the certificate had been issued in the name of Mrs. Mil-burn. The certificate showed that the vehicle was subject to a conditional sales lien for $4805 in favor of East Side Motors. The policy in suit, as stated, named both Mr. and Mrs. Milburn as the insured, and plaintiff as loss payee as its interest may appear. Defendant now contends that plaintiff’s rights under the conditional sale, contract were derived from Milburn, and' that inasmuch as the certificate of title was issued in Mrs. Milburn’s name plaintiff has no interest which is covered by the policy. Defendant has overlooked the fact that under a conditional sale contract (as the instant instrument states) title to the property remains in the seller until the purchase price is paid. Auffenberg Lincoln-Mercury, Inc. v. Wallace, Mo.App., 318 S.W.2d 528. Plaintiff derived its interest, not from Milburn, but from East Side Motors, which assigned the conditional sale contract to it. There is no merit in the contention.

During the course of his cross-examination Walter L. Pruitt, Assistant Manager of World Investment, testified that plaintiff had paid nothing to East Side Motors at the time the conditional sale contract was assigned. The arrangement made, Pruitt stated, was that plaintiff was to collect the monthly payments of $105 as they fell due, and to remit the proceeds, except for a collection fee, to East Side Motors. Its total fee, according to Pruitt, would have been $130. Defendant argues that plaintiff’s only interest was its fee of $130, to which amount its right of recovery is limited. To the contrary, plaintiff’s interest was that of holder of legal title to the conditional sale contract, by reason of the assignment to it. As such, it could sue thereon in its own name, though the title had passed to it only for collection. Guerney v. Moore, 131 Mo. 650, 32 S.W. 1132; Young v. Hudson, 99 Mo. 102, 12 S.W. 632. The loss under the conditional sale contract, of course, was the subject of the insurance. Furthermore, there was evidence that defendant had recognized plaintiff’s interest by paying it a prior claim for damages to the car. Defendant at this late date is hardly in a position to question plaintiff’s interest under the policy.

Defendant complains of the giving of plaintiff’s Instruction No. 2 and the refusal of its Instruction A. These instructions defined a theft in accordance with the conflicting theories of the respective parties. What we have already said regarding the meaning of that word as employed in the policy disposes of defendant’s contentions.

As its final point defendant contends that error was committed in giving plaintiff’s verdict directing Instruction No. 1. It is claimed that the instruction failed to hypothesize sufficient facts for the jury to determine whether the automobile was stolen. In the instant case plaintiff’s essential evidentiary facts — that Milburn left the car with Skelton for the purpose of finding a buyer, and that Skelton absconded with the car — were uncontroverted. The ultimate issue was whether the car had been stolen, and the instruction required the jury to find that fact before it could return a verdict for plaintiff. Where there is no divergent or conflict in the essential facts it is sufficient to submit the ultimate fact for determination without specific hypothesization in the instruction. Hooper v. Conrad, 364 Mo. 176, 260 S.W.2d 496; Knight v. Richey, 363 Mo. 293, 250 S.W.2d 972. Defendant also complains of that portion of the instruction regarding notification of the loss, and argues that the means and method followed by Milburn was not in accord with that provided for in the contract. Defendant does not point to any means and method of notice specified in the policy, nor do we find such a provision. The only requirement is that the insured “give notice thereof (of a loss) as,soon as practical to the company or any of its authorized agents.” Plaintiff’s undisputed evidence was that Milburn notified John E. Bell, the company’s secretary, and a conceded authorized agent, by telephone as soon as he became aware of the theft of the car. The instruction required the jury to find that Milburn notified the defendant, through Bell, its agent, of the theft “as soon as practical.” We think this was sufficient.

Defendant’s third attack on Instruction No. 1 is that reference was made therein to plaintiff’s “financial interest,” whereas the policy of insurance required that plaintiff have an “insurable interest.” Defendant does not point out where the word “insurable” appears before the word “interest” in the policy, nor have we been able to locate such a phrase. As previously stated, the words used in the loss payee provision is “Any loss hereunder is payable as interest may appear * * No contention is made that plaintiff did not have an insurable interest. Lastly, defendant complains that the instruction was deficient in that the date of the theft and of no tification were not hypothesized, and that such dates were necessary to enable the jur> to correctly assess the value of the automobile and the amount of the interest. Admittedly, the instruction is deficient as to such dates. But it is obvious that in returning its verdict the jury followed plaintiff’s evidence as to the amount due on the conditional sale contract when Milburn discovered and notified defendant of the theft (which amount, $2162, was shown to have been less than the then value of the car), and defendant does not complain that the amount found as plaintiff’s loss or the interest thereon was erroneous or excessive. Defendant does not point out, and we fail to see, how it was prejudiced by the omission. We are not authorized to reverse for harmless error, but only for that error committed by the trial court against the appellant materially affecting the merits of the action. Civil Rule 83.13(b), V.A.M.R.; Flanigan v. City of Springfield, Mo., 360 S.W.2d 700; Patison v. Campbell, Mo., 337 S.W.2d 72.

The judgment should be affirmed, and the Commissioner so recommends.

PER CURIAM:

The foregoing opinion of DOERNER, C., is adopted as the opinion of this court. The judgment is affirmed.

WOLFE, Acting P. J., ANDERSON, J., and R. KENNETH ELLIOTT, Special Judge, concur.


author: BRADY, Commissioner.

text:
    Harold O. GOAD and Jo Ann Goad, Plaintiffs-Respondents, v. MISTER SOFTEE OF THE MISSISSIPPI VALLEY, INC., a Corporation, J. Thomas Evans, and Ilion L. Miller, Defendants-Appellants.
    No. 31454.
    St. Louis Court of Appeals. Missouri.
    June 15, 1964.

      Blumenfeld, Kalishman & Tureen, Charles M. Tureen, St. Louis, for defendants-appellants.
    Boyle, Priest, Elliott & Weakley, Edward D. Weakley, St. Louis, for plaintiffs-respondents.
   BRADY, Commissioner.

This appeal arises out of proceedings wherein the respondents sought an injunction to prevent the appellants from obtaining a repossessed title to a truck. The issue presented for our ruling does not deal with the propriety of the trial court’s action in refusing to grant the relief requested, and accordingly, our statement of the factual situation will be very brief. The parties will hereafter be referred to by their designation in the trial court.

The plaintiffs had purchased a “Mister Softee” truck from the corporate defendant. They had paid $4,500.00 down and had given their note secured by a chattel mortgage for the balance due of $10,217.00. This note and chattel mortgage had been sold by the corporate defendant to a finance company. The plaintiffs had been unable to keep the truck in operation, and the defendant Miller had arranged for the plaintiffs to lease the truck to the defendant Evans. The provisions of the lease are not pertinent. Evans got behind in his payments under this lease and also owed money to the defendant Miller. The source of Evans’ indebtedness to Miller does not appear. The plaintiffs were persuaded to execute a new note and chattel mortgage by which they borrowed an additional $3,000.00 and loaned this sum to Evans so that he could pay Miller and pay them the arrearage due them under the lease. This note was for the amount of $5,276.26 which was the

total of the amount Miller told the plaintiffs they owed under the old note, interest, and the $3,000.00. At the same time plaintiffs executed a new lease to Evans by which the payments were increased to retire this new indebtedness. This arrangement is not an issue in this appeal. The plaintiffs did not receive any of this $3,000.00. Evans became in arrears again, and this resulted in the plaintiffs being unable to make their payments to the finance company. That organization, having purchased the plaintiffs’ note from the defendant corporation with recourse, made demand upon the corporate defendant. It does not appear that the corporate defendant ever paid off the plaintiffs’ note to the finance company, although it does appear that the note and chattel mortgage were reassigned to the corporate defendant who then repossessed the truck. The corporate defendant then entered into negotiations with Mister Softee of Los Angeles, Inc., culminating in the truck being sent to California. Upon demand by the California organization for the title to the truck, the defendant corporation requested the proper authorities in this state to issue a repossessed title to the truck in the defendant corporation’s name. Having been notified by the Department of Revenue of this state that it intended to issue title the plaintiffs brought their action to enjoin the defendants for making application and securing such a title. As to the individual defendants, the plaintiffs’ theory was fraud. The plaintiffs had never received title to the truck. They had paid some $10,400.00 on those two notes or some $200.00 over the amount due on the original note plus a down payment of $4,500.00.

When the plaintiffs filed their action, they posted a bond of $5,276.00 with a corporate surety. The trial court approved the bond, issued its temporary restraining order and set a date for the defendants to show cause why the temporary injunction should not be issued as prayed. On the 18th of October, 1962, the hearing to show cause was held and submitted to the trial court who took the matter under advisement directing that the restraining order should remain in full force and effect. On October 22, 1962, the trial court denied the plaintiffs the relief they requested. In that order and immediately following the denial of the plaintiffs’ request for a temporary injunction the trial court stated that the temporary restraining order was discharged “and bond released.” The next day the defendants filed a motion to amend this order by striking the words “and bond released” and to reinstate the bond. This motion was argued, submitted and overruled on November 21, 1962. Some six days after the trial court overruled the defendants’ motion to strike from its order the words “and bond released” a separate motion to assess damages was filed by the defendants. There has been no ruling nor action of any kind taken upon this motion. The defendants present one allegation of error for our ruling. They contend the trial court erred in overruling their motion to strike the words “and bond released” from its order denying the plaintiffs an injunction for the reason that there had been no adjudication of damages.

The defendants state in their brief that they appeal from the trial court’s action overruling their motion which sought to have the trial court amend its order by striking the words “and bond released.” The motion for new trial is in the same language. Generally appeals do not lie from rulings on motions which do not involve a final disposition of a case. In re Smith, Mo.App., 331 S.W.2d 169; Lowe v. Frede, 258 Mo. 208, 167 S.W. 443. In the instant case the trial court’s action was in effect a denial of any damages to the defendants. In such case an appeal will lie. Section 526.200 RSMo 1959, V.A.M.S., n. 40. We therefore construe defendants’ action as a good faith attempt to appeal from a judgment of the trial court denying them damages upon the trial court’s refusal to grant plaintiffs the injunctive relief for which they prayed.

In Waterman v. Waterman, Mo.App., 210 S.W.2d 723, 1. c. 726, this court held that “[1] ¡ability accrues on an injunction bond, and a defendant’s right of action comes into being, when the impropriety of the issuance of the injunction has been determined as a consequence of the termination of the injunction suit adversely to the party procuring the injunction. Cohn v. Lehman, 93 Mo. 574, 6 S.W. 267.” While the factual situation is somewhat different, this court’s ruling in J. J. Newberry Co. v. Baker, 239 Mo.App. 1130, 205 S.W.2d 935, is to the same effect. In Herbig v. Herbig, Mo.App., 245 S.W.2d 455, 1. c. 457, this court cited with approval Jegglin v. Orr, 224 Mo.App. 773, 29 S.W.2d 721. The Jegglin case held that a suit is prema turely brought and may not be maintained if the petition is filed before the cause of action has accrued. It follows that the defendants’ cause of action on the bond for damages came into being on October 22, when the trial court denied the plaintiffs the injunctive relief they sought. The defendants’ cause of action was not in existence on October 18 at which time the trial court took the order to show cause under submission and ordered that the restraining order it had theretofore issued was to remain in full force and effect. Accordingly, the issue of defendants’ damages against the bond could not have been properly heard and submitted to the trial court.

The plaintiffs’ position is that Civil Rules 92.09 and 92.11, V.A.M.R., do not expressly prevent the parties to an injunction proceeding from submitting the issue of damages to the trial court at the same time as they submit the issue as to the issuance of the injunction. They argue that any procedure which the parties may agree upon and which submits the issue of damages on the injunction bond is sufficient. We cannot agree. In the case of State ex rel. Latshaw v. Reeves, 237 Mo.App. 812, 177 S.W.2d 537, it was recognized that what is now Section 526.200 RSMo 1959, V.A.M.S. makes no provision for the type of pleadings or the time for assessment of damages. It was therein pointed out that the statutes should be given a reasonable and practical instruction of interpretation. Reading the Latshaw case together with what this court said in Waterman v. Waterman, supra, and J. J. Newberry v. Baker, supra, we have grave doubt that plaintiffs’ position can be sustained. However, it is unnecessary to rule that under any and all circumstances the defendants could not present their allegations as to the damages due them at the same time they presented their evidence as to the issuance of the temporary injunction. The assumption and we do not so decide, that the plaintiffs are correct will not inure to their benefit. This for the reason that there was no action taken by the parties in this case that can be held to have submitted the issue of damages to the trial court. It will be recalled that the parties .were engaged upon a hearing held pursuant to, an order to show cause. The issue framed by that order was whether the trial court should grant plaintiffs a temporary injunction. In response to that order the defendants separately filed pleadings which the plaintiffs admit in their brief amount to “ * *■ * a general denial of the allegations in the petition.” There is no mention of damages in any such pleadings. The defendants did not file a pleading of any kind requesting affirmative relief against the bond or in any other manner. So far as the pleadings are concerned the parties joined issue only upon the propriety of the issuance of a temporary injunction. As a matter of fact the pleadings furnish support to the defendants’ contention that this issue was never submitted to the trial court. Each of the defendants filed separate returns to the order to show cause, and in each return it was alleged that the granting of the temporary injunction as prayed by the plaintiffs would cause irreparable harm to “this defendant.” Exhibit 1 consists of an affidavit by the defendant stating the probable damages that the corporate defendant might sustain if the temporary injunction were entered. (The issue is not here raised, and so we will not rule upon the admission of such an affidavit where there was no showing that the affiant who had been personally served could not attend the trial.) While somewhat confusing in its language, a fair reading of the affidavit indicates clearly that its purpose was to place before the court some evidence to support the allegation of the returns that the granting of a temporary injunction would cause irreparable harm to the defendants. Except for this exhibit the transcript is entirely silent as to the word “damages.” There was no indication by either party that such an issue was to be presented or even considered. It follows that we are not here presented with a case in which the parties can be held to have joined issue, tried and submitted to the trial court the issue of damages upon the bond while engaged in the hearing on the order to show cause.

The judgment should be reversed and the trial court directed to enter its order striking the words “and bond released” from its order of October 22, 1962. The Commissioner so recommends.

PER CURIAM:

The foregoing opinion of BRADY, C., is adopted as the opinion of this court. The judgment is reversed with directions.

RUDDY, P. J., and WOLFE and ANDERSON, JJ., concur.


author: RUDDY, Presiding Judge.

text:
    Hubert J. KISSEL, Alloys A. Kissel, and Hubert W. Kissel, Co-Partners, d/b/a H. Kissel's Sons, (Plaintiffs) Respondents, v. The AETNA CASUALTY AND SURETY COMPANY, (Defendant) Appellant.
    No. 31339.
    St. Louis Court of Appeals. Missouri.
    June 15, 1964.
    Motion for Rehearing or to Transfer to Supremo Court Denied July 21, 1964.

      G. W. Marsalek, Joseph H. Mueller, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for appellant.
    Kappel & Neill, John C. Kappel, Robert E. Staed, St. Louis, for respondents.
   RUDDY, Presiding Judge.

This action was instituted by Hubert J. Kissel, Alloys Kissel and Hubert W. Kissel, co-partners, doing business as H. Kissel’s Sons against the Aetna Casualty and Surety Company on a Comprehensive General Liability policy issued by the defendant to the plaintiffs. Plaintiffs are in the general contracting business and are primarily engaged in the erection of schools and churches. Five suits were filed by individual property owners against the plaintiffs herein for damage to their property alleged to have been caused by reason of careless and negligent excavation by the plaintiffs herein and their failure to give a notice of excavation. Each of the suits was for a substantial sum of money. Plaintiffs herein, feeling that the suits were within the coverage of the aforementioned policy, called upon defendant to defend and handle the aforesaid suits. The defendant, shortly after assuming control of said suits, withdrew from the defense of said suits because it claimed the policy did not afford coverage. Plaintiffs were able to compromise all of these claims and in settlement thereof and for litigation expense, court costs and attorneys’ fees, expended the sum of $8,443.55. Plaintiffs received judgment for this amount, plus interest thereon in the amount of $2195.25, together with damages for vexatious delay in the amount of $3344.35, aggregating a total judgment of $13,983.15. From this judgment defendant has appealed.

As stated, plaintiffs were primarily engaged in the building of schools and churches. When a building job was procured they would usually estimate the carpentry work and the concrete work in the building and would normally sublet the balance of the work to be done to subcontractors.

On April 30, 1952, plaintiffs signed a contract to build a school for Our Lady of Good Counsel’s parish. On this job plaintiffs did the carpentry work and the balance of the work was sublet to subcontractors. The subcontract for the excavation work was let to D. E. Murphy. Plaintiffs commenced the erection of the building about the middle of May, 1952. D. E. Murphy, the excavation subcontractor, in addition to digging the foundations of the building, was to grade the site of the school premises which was about 12 or 13 acres, change the contour of the site and after the foundation of the school building was completed, his job was to backfill and shape up the entire area. The area included an athletic field. All of the excavating work was completed by June of 1953, having been started about the middle of May, 1952.

The first part of October 1952, shortly after the playground excavation was started, a series of cracks developed in the ground at the rear or south of the playground area. Hubert J. Kissel, one of the plaintiffs, testified that “Suddenly the ground opened up.” The cracks in the ground referred to developed at the toe of a slope or incline. When these cracks developed Hubert J. Kissel called the architect who, in turn, called. an engineer, and the three of them determined to put into the cracks and openings a large fill of earth to hold the slope. The witness said the object of bringing in the dirt was to stabilize the hill, to keep it from moving further, stating that the crack developed at the toe of the slope when the earth began to move. This witness testified that the dirt fill was done “beginning with November 7th and then November 9th, 10th, 11th, and so on.” The plaintiffs completed the work under the contract by November of 1953.

Five suits were filed against plaintiffs by the owners of five separate pieces of property situated generally to the south of and contiguous to the area where the series of cracks developed in the ground at the toe of the slope and incline heretofore described. One of these suits was filed in May 1957 and four in July 1957. After the original petitions had been filed and served upon the plaintiffs herein, the property owners, plaintiffs in said suits, filed amended petitions, each and all of which contained similar allegations. The pertinent parts of these petitions are as follows:

“3. That the defendants are contractors engaged in the business of general contracting, building and excavating work and as such entered into a contract to, and did, excavate property lying generally to the north of and contiguous to plaintiffs’ above described property; that such work was started in approximately August, 1952 and continued until a few days prior to November 11, 1952.
“4. That the defendants negligently removed earth from property contiguous to plaintiffs’ and thereby withdrew the lateral support of the earth in its natural state of plaintiffs’ property, causing it to sink and slide in a north-wardly direction.
“5. That said action on the part of defendants violated plaintiffs’ rights of lateral support for the earth on plaintiffs’ said property.
“6. That defendants gave plaintiffs no notice of their intention to excavate.
* * * * * *
“9. That defendants did such excavation in a negligent and careless manner in that defendants excavated below the water table level and excavated without putting in foundations, piling and footings to prevent the earth on plaintiffs’ land from sinking and sliding away.”

After the summonses and petitions were served on the plaintiffs, Hubert Kissel, one of the plaintiffs herein, turned all of the papers over to the agent who had written the insurance through the defendant company. The defendant then turned over the defense of these suits to its attorneys, the same attorneys now representing them in this action. Thereafter, plaintiffs cooperated at all times with the attorneys for the defendant. After defendant’s attorneys took the deposition of Mr. and Mrs. Grei-mann, plaintiffs in one of the five pending suits, they wrote to the plaintiffs, in the instant case, under date of August 30, 1957, informing them that the deposition casts some doubt upon the insurance coverage, and informed said plaintiffs that the defendant was willing to have the attorneys continue the active defense of the cases, provided it was understood and agreed that by so doing the Aetna Casualty and Surety Company waived none of. its rights under its policy issued to the plaintiffs and that all of its rights thereunder were fully reserved. Plaintiffs were further informed that if they were willing to have defendant’s attorneys defend the suits on that basis and with that understanding that each of the plaintiffs insured under the policy may so indicate by signing a copy of a letter enclosed for that purpose and were requested to return the signed copy to the attorneys for their records. All of the plaintiffs accepted this reservation and signed the letter enclosed for that purpose .and returned the letter to the attorneys for the defendant.

Thereafter, further depositions of the 'claimants against the plaintiffs were taken by defendant’s attorneys. Parts of the •depositions of these claimants were read into evidence in the instant case. Mr. William Matthews said that the first thing he saw was some of Mr. Greimann’s land •crack and open up. Mr. Greimann’s land adjoined that of the witness Matthews. Matthews then testified "that crack continued in my yard, into my property.” He then testified that he first saw the original crack in February of 1957. Upon further questioning he testified that when he moved into his house there had been a ■crack in the ground and at the time he moved in the crack was filled and, as he put it, “were resodding it.” He said this took place in “all the yards involved in it. I don’t know how many at that time.” He then stated that this took place in May of 1953. Mr. Bosch, another claimant, testified that the first damage to his property was April or May of 1957. When he was -asked to fix the date more accurately, he •answered, “Well, in this respect, referring to Mr. and Mrs. Greimann, that was the •original, and this cracking was a progressive thing. My damage didn’t occur at the same time, just kept breaking away.” Following the taking of these depositions defendant’s attorneys notified the plaintiffs herein on December 6, 1957, that they were withdrawing from the defense of the aforesaid suits “because the Aetna Casualty & Surety Company policy issued to you does ■not afford coverage to your organization' ■or its members for the losses and damages mentioned in the petition.” All of the depositions and photographs taken and the reports of investigations made were made available to the plaintiffs and their attorneys. Before this date defendant’s attorneys had filed answers in all of the cases filed against plaintiffs and had filed a motion to consolidate all of the cases for trial. This motion was still pending at the time defendant’s attorneys withdrew from the defense of the suits against plaintiffs.

The plaintiffs herein engaged the attorneys who now represent them in this instant action to defend them in the five suits that were pending when defendant’s attorneys withdrew from the defense of the five suits. Thereafter, plaintiffs’ attorneys made a demand on the defendant herein to resume the defense of the five suits and this demand was refused by defendant.

As heretofore stated, the suits were settled before trial and the amounts paid in settlement, the litigation expense, the court costs and the reasonableness of the plaintiffs’ attorneys’ fees for the handling of the five suits are not here in dispute. In the course of the hearing of the instant matter it was stipulated that equivalent coverage was purchased by the plaintiffs for the years following the policy in suit and that this coverage was kept in force under the same conditions during the entire subsequent period.

The policy in question is, as heretofore stated, a “Comprehensive General Liability Policy.” The business of the insured as shown in the declarations of the policy is that of “Contracting” and the policy period began November 13, 1951, and extended to November 13, 1952. Under the “DECLARATIONS” the only part pertinent to this case is “The Property Damage Liability” which shows insurance to the limit of “$5,000 each accident, $25,000 aggregate operations, $25,000 aggregate contractual, and $25,000 aggregate protective.” Under the designation “aggregate products” there is no amount shown. The advance premium for the coverage shown is $37.51. Declaration 4 stated, “The Declarations are completed on attached General Liability Schedule.” Declaration 5 states, “The General Liability Schedule discloses all hazards insured hereunder known to exist at the effective date of this Policy, except as herein stated.” Nothing is stated following this declaration.

The General Liability Schedule, above referred to, is in tabular form. In five “boxes” and in adjacent vertical columns appear respectively: “(A) PREMISES OPERATIONS,” with a description of this in subdivisions including general carpentry, residential carpentry, clerical office employees, and Concrete Construction work, all with extension of premium rates, advanced premiums and rating Code Nos. into the proper adjacent columns. Box (C) shows “INDEPENDENT CONTRACTORS — LET OR SUBLET WORK” with an extension of premium rates and deposits into the proper columns. Box (D) shows “PRODUCTS (INCLUDING COMPLETED OPERATIONS) not covered.” The hazards “(B) ELEVATORS” and “(E) CONTRACTUAL” bear the notation “No exposure” and have no bearing on the issues involved in the instant case.

The policy provides that “The Aetna * * * Agrees with the Insured, named in the Declarations made a part hereof, * * * subject to the limits of liability, exclusions, conditions and other terms of this Policy: * * * 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 use thereof, caused by accident.”

The pertinent parts appearing under “CONDITIONS 4 Limits of Liability” are as follows:

“(b) Coverage B.
* * % * * *

“The limit of property damage liability stated in the Declarations as ‘aggregate protective’ is the total limit of the Company’s liability for all damages arising out of injury to or destruction of property, including the loss of use thereof, caused by operations performed for the named Insured by independent contractors or omissions or supervisory acts of the Insured in connection therewith, except maintenance or ordinary alterations and repairs on premises owned or rented by the named Insured.

* * * * * *

“(c) Products. The limits of bodily injury liability and property damage liability stated in the Declarations as ‘aggregate products’ are respectively the total limits of all the Company’s liability for all damages arising out of the products hazard. All such damages arising out of one prepared or acquired lot of goods or products shall be considered as arising out of one accident.” (As stated, no coverage for this.)

Under the section denominated “EXCLUSIONS” the policy shows the following pertinent provisions:

“This Policy does not apply: * * * (d) under Coverage B, to injury to or destruction of * * * (3) any goods or products manufactured, sold, handled or distributed or premises alienated by the named Insured, or work completed by or for the named Insured, out of which the accident arises.”

Under the section denominated “Conditions” are a number of definitions, among which is the following:

“(c) Products Hazard. The term ‘products hazard’ means: * * *

“(2) operations, if the accident occurs after such operations have been completed or abandoned at the place of occurrence thereof * * * provided, operations shall not be deemed incomplete because improperly or defectively performed or because further operations may be required pursuant to a service or maintenance agreement.”

Two endorsements are attached to the policy. One is entitled “Endorsement-General Liability” with a subheading “Exclusion of Products Hazard.” Then the following appears: “It is agreed that the Policy does not apply: 1. to the Products Hazard as defined therein; * *

In the trial court the parties consented to waive a jury and the issues were tried by the court. After the trial was completed the trial judge entered a memorandum opinion in which he made certain findings which we approve and adopt. It was found that during the period the policy was in force certain cracks or openings appeared and developed in property located immediately south of the recreational field that had been excavated and graded by Murphy and that additional dirt was hauled in and used to correct the condition; that sometime thereafter there was a reoccurrence and the condition became progressively worse; that during the year 1957 a series of lawsuits were filed against plaintiffs by the owners of the mentioned property to recover damages which resulted from the aforesaid condition; that the initial shift or slide of land was first detected or noticed while Murphy was still grading and excavating the field adjoining the property in question; that corrective measures then were instituted to arrest the shift or slide of land; that it is evident the said condition was directly related to the grading and excavating which was in progress; that this indicated a basic change in support, rigidity and stability of the ground then and there occurred; that although the lawsuits filed by the property owners claimed damage from conditions which appeared and developed later, and after the work had been completed, such conditions flowed directly from the basic cause and original change in support, rigidity and stability of the ground. The court further found that the damage was directly attributable to the grading and excavating operations conducted by Murphy and that these operations caused or contributed to cause a movement of the ground and instability thereof; that once started such condition became creeping in form and continuous in nature. The court further found that whether the work was completed or not completed, the damage was already there and in motion; that there was nothing to reveal a contrary conclusion.

Defendant in its first point contends that the policy does not cover damages occurring after the insureds’ (plaintiffs’) operations had been completed. It contends that at the time of the damages shown in evidence the plaintiffs had completed their operations, hence the policy did not cover the alleged damages.

Defendant points out that this form of insurance policy has not previously been before the courts of this state and that a search of the law of the cases in other states discloses that there are two lines of authority with respect to the policy provisions in question. It asks us to adopt the reasoning found in a line of cases it cites in support of its position and contends that the contrary line of authorities relied on by plaintiffs is out of accord with logic and reason, fails to give words their usual and ordinary meaning and fails to accord any meaning at all to substantial provisions of the policy.

It is the position of the defendant that the plaintiffs completed their entire job — excavating, digging, building — everything, and were off the job and received final payment by November of 1953. It contends that after the plaintiffs left the job and received the final payment in November 1953 the job was a “completed operation” within the meaning of the policy in question. Defendant relies upon the following provisions contained in the policy. It points out that Declaration 4 made the General Liability Schedule a part of the declarations upon which the policy was based; that Declaration 5 was a statement that the General Liability Schedule disclosed all hazards insured against, known at the effective date of the policy. It further points out that the General Liability Schedule itself stated that with respect to “PRODUCTS (INCLUDING COMPLETED OPERATIONS)” they were “not covered.” It also points out that this was reiterated and emphasized in an endorsement which said “Exclusion of Products Hazard It is agreed that the Policy does not apply; (1) to the Products Hazard as defined therein”; and it points out that the Products Hazard as defined in the policy was stated to mean, ““Operations, if the accident occurs after such operations have been completed or abandoned at the place of occurrence thereof * * *; provided, operations shall not be deemed incomplete because improperly or defectively performed or because further operations may be required pursuant to a service or maintenance agreement.”

Defendant cites numerous cases allegedly in support of its position. The support that defendant seems to find in these cases is summed up in its brief in the statement that the cases cited “in support of our position, correctly assume that a 'completed operation’ is a ‘product,’ to be dealt with properly under provisions governing ‘Products Hazards,’ and in so holding, those courts have given effect to the ordinary usage of the English language, and have given effect to all of the terms of the insurance contract.”

We see no need to detail the facts of the cases relied on by defendant because in virtually all of the cases there was a product involved, either manufactured, sold, handled or distributed by the insured. In the case of United States Sanitary Specialties Corp. v. Globe Indemnity Company (U.S.C.A. 7th) 204 F.2d 774, the product was wax. In Standard Accident Insurance Company v. Roberts et al., (U.S.C.A. 8th) 132 F.2d 794, a gas operated refrigerator. In New Amsterdam Casualty Company v. Ellzcy (U.S.C.A. 5th) 240 F.2d 618, the product installed was a window fan. In the case of Berger Bros. Electric Motors, Inc., v. New Amsterdam Casualty Co., 293 N.Y. 523, 58 N.E.2d 717, a ventilation fan. In Crook v. Kalamazoo Sales and Service Inc., 82 R.I. 387, 110 A.2d 266, an oil and gas range. In Hutchinson Gas Co. v. Phoenix Indemnity Company, 206 Minn. 257, 288 N.W. 847, a gas stove. In Hardware Mutual Casualty Company v. Schantz (U.S.C.A. 5th) 186 F.2d 868, a hoist. In the following cases cited by defendant it admits that the policy terms differ from those under consideration in this case. The cases are, Baker v. Maryland Casualty Company, (-R.L) 56 A.2d 920; Smith v. United States Fidelity and Guaranty Company, 142 Neb. 321, 6 N.W.2d 81; Foster Trailer Company v. United States Fidelity & Guaranty Company, 190 Tenn. 181, 228 S.W.2d 107; General Casualty Company of Wisconsin v. Larson (U.S.C.A. 8th) 196 F.2d 170.

Defendant contends that the other line of cases which holds contrary to the position advocated by it does violence to logic and to the ordinary rules by which contracts are construed and that the opinions in those cases “go off” on a tangent by missing the meaning of the word “products.” Defendant holds that in those cases the courts erred by equating the word “product” with “goods, wares and merchandise.” It contends that this kind of construction misses the ordinary usage and standard definition of the word “product.” And in support of its position cites the definition as given in Webster’s New International Dictionary Unabridged, 2d Ed. 1951. Defendant contends that “when a contractor walks away from a slope after completing his grading work, the result that he leaves behind him is as much the ‘product’ of his work as” is the brief filed by defendant in this case, the product of the writer’s work. It says that the idea that a contractor has no “product” is wholly illogical, erroneous and fallacious and that the building of the athletic field and the school are the “products” of their builders and that what a contractor leaves behind when his work is finished — his “completed operation” — is his “product.”

We do not agree with defendant’s position in attaching such a broad meaning to the term products as used in the insurance policy in question. We do not think it was the intended policy meaning when using the term products and this appears more convincingly so when the policy itself states the nature of the insured’s business as “contracting.” Support for our disagreement with defendant’s contention can be found in the following cases cited by plaintiffs, some of which we analyze. One of the cases cited by defendant supports our holding that plaintiffs did not produce, manufacture, sell or handle a product within the meaning and contemplation of the insurance policy issued. The case cited by defendant is Hercules Company, Inc., v. Royal Indemnity Company (U.S.D.C.S.D.N.Y.) 171 F.Supp. 746. In that case plaintiff in the regular course of its business performed certain work on a steamship consisting of cleaning the deep tanks located in the holds of the vessel. Thereafter, plaintiff received notice from the steamship company alleging that the aforesaid work had been negligently performed and had resulted in accidental destruction of property in that plaintiff had permitted the rags used by it in the performance of said work to gain access to the bilge suction line from said tanks and permitted said rags to foul certain valves servicing the suction line, and that as a result thereof a portion of the liquid had escaped from the ship by reason of the negligence of the plaintiff.

The court in its opinion said: “The defendant maintains the insurance policy excluded claims arising from ‘completed work.’ The defendant relies upon two provisions of the insurance policy in support of this contention. One is that on the face of the policy there was the phrase ‘Products (Including Completed operations) Excluded.’ There is no doubt from this provision of the policy that the insurance did not cover products, however, plaintiff did not sell products; it performed services. The exclusion of a products liability, the premium for which under the policy would have been a certain percentage of sales, would certainly not have indicated to the average purchaser of insurance that there was an exclusion for liability for negligence in connection with services rendered by it. The claim of the Weyerhaueser Steamship Company was not for negligence in connection with products sold by the plaintiff, but rather was concerned with negligence in connection with work done by the plaintiff in connection with services rendered in the cleaning out of the hold of the ship, which was an item specifically covered by the policy. The exclusion which relates to ‘products’ manufactured or distributed by the insured, would not be an exclusion which would relate to services performed, out of which services the accident arose. No businessman reading this policy could reasonably assume from the rather ambiguous language used therein that the insured was not protected against the natural consequence of any negligence on its part in the performance of its services which constituted its regular business. If there is any ambiguity in the policy it must be construed against the insurance company.” (Emphasis ours) (171 F.Supp. 1. c. 748.)

The case often quoted and somewhat analogous to the factual situation in this case is that of Kendrick v. Mason, 234 La. 271, 99 So.2d 108. In that case Mason, a contractor, entered into an agreement with the Town of Jena, Louisiana, for the installation of a sewerage collection system. During the performance of the agreement Mason and his employees dug the trenches and laid the sewer lines, and in the course of this operation the natural gas lines which had been previously installed in the town of Jena were cut or punctured at various places. No effort was made by Mason to repair these cuts and damaged gas lines and, therefore, natural gas was permitted to flow and escape therefrom unchecked. As a result of this condition gas had accumulated in the sewer system and in a sewer pipe that lead into the Kendrick home. Thereafter and beyond the completion date of the contract there was an explosion causing total loss of the home and extensive personal injuries. The United States Fidelity and Guaranty Company who insured Mason denied liability to him for the alleged tort on the grounds that the damages did not occur during the time the work was being done. The same question presented here was raised in that case, namely, that the exclusion for “Completed Operations” as found in the Products Hazard section of the policy barred recovery. The Supreme Court of Louisiana in its opinion adopted certain excerpts from an opinion of the Court of Appeals of the Second Circuit of Louisiana, in King v. Mason, 95 So.2d 705, wherein that court had made a detailed study of the provisions of the policy under scrutiny noting that the claimed exclusion appeared under the caption "Products Hazard — Completed Operations,” (which policy provisions are similar to those contained in the policy here reviewed). The court said, quoting from the Court of Appeals decision: “‘In all probability, from a fair interpretation of the exclusion just referred to, the endorsement pertains to and excludes injuries arising out of the handling or use of products, goods, wares, or merchandise sold or rented if the insured has relinquished possession thereof to others and away from the premises owned, rented or controlled by the insured or on the premises for which the classification stated in Division (a) of the declaration ■excludes “any part of the foregoing,” which could only mean the handling of goods or products of some kind.

“ ‘The defendant Mason handled no products, meaning “goods or products” manufactured, sold or distributed. He, therefore, did not want or need the coverage. The reference to the accident occurring after the operations have been completed and abandoned at or away from premises owned, rented or controlled by the insured means nothing more than the accidents ■occurring by reason of handling of products or goods, after any agreement to sell, rent or deliver the goods has been completed or the goods have been abandoned.’ ” (99 So.2d 1. c. 116.)

The Supreme Court of Lousiana then went on to say, (1. c. 116) “It is significant that the policy contract does not recite that any of these exclusions pertains to or refers to contractors who have no products for sale but who have performed a contract for the installation of a public utility, as in the instant case, or even .the erection of any structure, public or private; whereas the policy does specifically recite that the assured, C. N. Mason, is a sewer and water main contractor. By no means of interpretation known to us can it be positively asserted that the exclusions in the policy and the endorsements attached thereto referred to contractors, and we deem it the fundamental duty of the insurer to express clearly the limitations of its obligation. (Emphasis ours).

“* * * In the instant case the exclusions and exceptions relied upon by the insurer to escape liability were not stated with clearness and precision, thereby defining the limits of its obligation therein. An analysis of the exclusion and exceptions therein clearly demonstrates an ambiguity and vagueness which under our well settled jurisprudence must be construed against the insurer. * * *

“We are constrained to conclude that the liability exclusion provisions of the policy herein issued by the defendant to Mason are inapplicable herein for the reason that Mason handled no products but was engaged solely as a contractor and the exclusion provisions of the policy have no application to the construction work performed by him. The policy was issued to fully protect Mason against liability for acts of negligence committed by him during his performance of the contract. The tort which was the proximate cause of the damages sustained by plaintiff was in fact and in law committed during the performance of the construction contract. * * * The policy covering said accidents for which premiums were charged was then in full force and effect; and the conclusion is inescapable that the insurer is therefore liable in solido with its insured, Mason.”

In the case of Nielson v. Travelers Indemnity Co., D.C., 174 F.Supp. 648, affirmed 8 Cir., 277 F.2d 455, the insured was an excavating contractor and there, as here, the dispute was whether or not a claim arising after the contract had been completed would be covered under the terms of the policy. The court found that the terms of the policy attempting to set up the exclusions were ambiguous and that the ambiguity would be resolved in favor of coverage. The court in so holding said: “Liability on the part of the contractor which arises after he has completed his contract and the subject matter of it is accepted by the other party to the contract is frequently referred to as completed operations liability. An independent contractor who erects a structure under a contract with the owner is not commonly regarded as being the manufacturer or vendor of a product. * * * There are also situations where an independent contractor furnishes services which do not involve the supplying of a product or material. Frequently the damage resulting from negligence of such person in connection therewith does not occur until some time after the services have been completed.

‡ Jfc i)c ‡ ‡

“The cases heretofore discussed indicate that where an independent contractor is engaged in an activity in which no products or materials are used and coverage for such activity is purportedly given as to hazards in connection therewith in the declarations portion of his comprehensive liability policy, and in the printed portion of the policy there is a products hazard provision which contains a subdivision relating to the matter of completed operations, the situation is one which may give rise to doubt and ambiguity on the question of coverage. * * *

“The Court is of the view and finds under the circumstances in this case the terms of the policy are ambiguous as to the matter of coverage here involved and leaves that matter in doubt. Under the Iowa law such doubt and ambiguity are to be resolved in favor of the insured.” (174 F.Supp. 1. c. 652, 662.)

For other supporting cases involving contractors see Hoffman and Klemperer Co. v. Ocean Accident and Guarantee Corp., 7 Cir., 292 F.2d 324; McAllister v. Century Indemnity Co. of Hartford, 24 N.J.Super. 289, 94 A.2d 345, and McNally v. American States Insurance Company, 6 Cir., 308 F.2d 438.

We are in complete agreement with what was said in Kendrick v. Mason, supra; Nielson v. Travelers Indemnity Co., supra; and Hercules Co., Inc. v. Royal Indemnity Company, supra. The policy provisions under scrutiny in those cases were similar to the provisions relied upon by defendant in this case.

It appears clear to us that when plaintiffs purchased the comprehensive general liability policy relied on by them for recovery in this case, they meant to purchase and obtain general contractors protection against comprehensive claims arising out of their work and services in the performance of building Our Lady of Good Counsel School, including tort claims arising from their excavating operations. By no stretch of legalistic nomenclature or business language or understanding can it be said that the plaintiffs either manufactured, sold, handled or distributed any products. Their business was clearly stated in the insurance policy as that of “contracting.” From the very nature of their business one can only conclude that they performed services. To the average person the term products hazard can only mean a hazard arising out of the use of or the existence of any condition in goods or products manufactured, sold, handled or distributed by the insured. The suits filed against plaintiffs herein involve no such hazard but are based only and solely on alleged negligence in connection with the excavation of the premises in question. Certainly plaintiffs were seeking comprehensive general liability coverage and were seeking a policy that would cover all manner of claims arising in the performance of their type of business. Certainly defendant’s agent knew when he sold this type of coverage to plaintiffs that plaintiffs were not handling, manufacturing, distributing or selling a product but were simply performing a service. When Murphy, the subcontractor, excavated the premises, he was performing a service and was not engaged in either manufacturing, selling, handling or distributing a product. Any contention to the contrary, under the facts in this case, is illogical, unsound and without good reason, and as said in the Hercules case, any exclusion which relates to “products” either sold, manufactured, handled or distributed by the insured would not be an exclusion which would relate to services performed out of which services the accident arose. We can do no better, in connection with the facts in the instant case, than to repeat what was said in the Hercules case: “No businessman (or other ordinarily intelligent person) reading this policy could reasonably assume from the rather ambiguous language used therein that the insured was not protected against the natural consequence of any negligence on its part in the performance of its services which constituted its regular business. If there is any ambiguity in the policy it must be construed against the insurance company.” (Parenthesis ours.) (171 F.Supp. 1. c. 748.) We rule that the terms of the policy fully protected plaintiffs against liability for acts of negligence committed by them or by their subcontractor during the performance of the contract. The negligence committed by Murphy in the grading of the toe of the slope or incline was the proximate cause of the damages later sustained by the property owners who sued plaintiffs and was in fact and in law committed during the performance of the work while the insurance contract was in force.

In the cases analyzed hereinbefore and relied on by this court it is stated that the exclusions and exceptions relied upon by the insurer to escape liability were not stated with clearness and precision, thereby defining the limits of its obligation therein. These courts found in an analysis of the exclusions and exceptions that they clearly demonstrate an ambiguity and vagueness which under well settled jurisprudence must be construed against the insurer. This is a cardinal rule of construction in connection with determining the coverage of an insurance policy and needs no further citation of authority.

The next point urged by defendant is that the accident in question occurred in 1957, and not during the policy period, which was November 1951, to November 1952. Under those circumstances it contends that it cannot he held responsible for the damages shown in evidence.

The principal authority relied upon by the defendant is the case of Remmer v. Glens Falls Indemnity Company, 140 Cal.App.2d 84, 295 P.2d 19, 57 A.L.R.2d 1379. In that case the plaintiffs during the year 1947 graded and filled portions of their lot. On January 21, 1952, large quantities of earth and rocks slid from the fill on plaintiffs’ property onto the property of the Morrises. The plaintiffs became obligated to reimburse the Morrises for part of that damage. The question presented was whether that loss was covered by the policy in question. The policy was a comprehensive personal liability policy issued to the plaintiffs on October 26, 1945, for a three year period. The policy was cancelled on January 15, 1948, and had never been renewed. The policy was in effect when the plaintiffs graded and filled their property but was not in effect in January of 1952, when the slide occurred that damaged the property of the Morrises. The court pointed out that the Morrises’ recovery was based upon the present threat to and depreciation of their land and caused by the current maintenance of the balance of the rocks. The damages sued for and recovered occurred after the policy was cancelled in 1948.

In the case of Morris v. Remmer, among other things, the trial court found that the grading and filling performed in 1947 were not executed in a negligent manner. In the case reviewed by the court it found: “We are not interested in ascertaining what theory the Morrises could have sued upon, but on what theory they did sue upon. This is to be determined from the pleadings. Clearly, that complaint, without ambiguity, was for damages for the present nuisance, currently maintained and currently threatening injury, and for its abatement. The cause of action pleaded was necessarily, therefore, not for an ‘occurrence’ happening within the time limits of the policy.” (295 P.2d 1. c. 22). The court pointed out that the suit filed by the Morrises was for damages caused by a present existing nuisance and that although the nuisance was an injury when created in 1947, for which the Remmers were liable and although such injury occurred during the effective term of the policy, no action was ever brought for that injury. This case does not support defendant’s contention because the cause of action reviewed there was one for a present nuisance currently maintained and currently threatening injury and wherein the Morrises had asked for its abatement. Opposing the contention of defendant is the language of the opinion which held that the nuisance was an injury when created in 1947 for which the Remmers were liable, which was during the time the policy was in effect and at which time no actual occurrence had taken place. Nevertheless, the court held inferentially that an action could have been brought for injury created by the nuisance.

As said in a note found in 57 A.L.R.2d 1389, as an annotation to the Remmer case, “Since the terminology of the policies involved is not uniform, no general rule can be stated in connection with the question, other than the well-recognized principle of the law of insurance that the policies, having been prepared by the insurer, must be construed most strongly against it and in favor of the insurer.”

In a case called to our attention by plaintiffs we find a situation that almost parallels the instant situation under review. In the case of the Travelers v. Humming Bird Coal Co., (C. of A.) Ky., 371 S.W.2d 35, the Humming Bird Coal Company brought suit against the Travelers to recover under two policies of insurance. The first issued February 6, 1956, and covering the period from February 24th, 1956, to February 24th, T957, and a renewal issued July 8, 1957, and covering the period from September 10, 1957, to September 10, 1958. In that case the defendant Travelers agreed in both contracts to “pay to 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 use thereof, caused by accident and arising out of hazards hereinafter defined.”' (371 S.W.2d 1. c. 37.) In October 1956 the Coal Company began surface or strip mining on a mountain side and bulldozed the surface until a bench or shelf was established 30 or 40 feet wide and about 600 feet above the highway at the base of the steep' mountain slope. A large amount of earth and debris was removed and pushed over on the slope of the mountain. The Coal Company began to mine coal and continued until December 1956 and all the machinery was moved away by March 1957. Prior to December 1956 the earth mass on the slope-began to move or slip, not all at once but gradually and slowly until it reached the-border line of the Melton farm below, overrunning Melton’s water supply and damaging him seriously. The exact time this-earth mass passed over the boundary of the Melton land was not shown and the process, may have taken weeks and even months but it had its beginning before December 1956' and before the actual mining ceased on the-hill. On September 26, 1958, Melton filed suit against the coal company. The Travelers were called upon to defend the suit and refused to do so. The suit was settled' and the suit under review by the court was: filed and judgment was given in the trial', court against the defendant Travelers.

The court said: “The leading defense1 of defendant Travelers is that the injury to the Melton property was not an accident within the meaning of the policy. Here lies: a misconception. The accident mentioned in the policy need not be a blow but may be a process. * * * Where the accident is a process, how long is then not significant whether it takes three hours, three weeks or months. * * *

“This policy should not be interpreted so narrowly or rigidly as to destroy a recovery for a loss clearly traceable to the operation of plaintiff’s Coal Company’s business. Such contracts must be construed liberally.” (371 S.W.2d 1. c. 38).

In our case the trial court found and we find that the initial shift or slide of land was first detected or noticed while Murphy was still grading and excavating the field adjoining the damaged properties and that this condition was directly related to the grading and excavating which was then in progress. The trial court further found and we find that thereafter there was a reoccurrence of the condition and it became progressively worse. The trial court found and we find that the damages which formed the bases of the five lawsuits were directly attributable to the grading and excavating operations conducted by Murphy and that those operations caused or contributed to cause a movement and instability of the ground. The trial court found and we find that the initial shift or slide of land occurred during the period the policy in question was in force.

There is no doubt that the negligence which caused the inital shift or slide of land was the proximate cause of the damages later sustained by the plaintiffs and that this cause was an accident within the meaning of the policy. We agree, as did the court in the Humming Bird Coal Company case, that the accident mentioned in the policy may be a process and the evidence in the instant case is sufficient to show that the process started during the term of the policy and progressed until the filing of the five lawsuits. We rule this point against defendant.

In the final point urged by defendant it contends that the trial court erred in awarding damages for vexatious delay and attorneys’ fees, contending that § 375.420 RSMo-1959, 19 V.A.M.S., providing for statutory-penalties for vexatiously refusing to pay said loss, is not applicable. It contends that this is a case of first impression in this state, with conflicting authorities in other jurisdictions, and that it is entitled to seek judicial construction of the policy in question in this state.

The section of the statute referred to is highly penal and is strictly construed. It is the rule in this state, supported by many cases, that where there is an open-question of law or an issue of fact determinative of the insurer’s liability, the insurer, acting in good faith, may insist upon a judicial determination of such question or issue without being penalized thereforRohlfing v. State Farm Fire and Casualty Company, Mo.App., 349 S.W.2d 472, and cases therein cited. In order for plaintiffs-to recover for vexatious refusal to pay they must produce evidence which shows that the refusal to pay was willful and without reasonable cause as the facts would appear to a reasonable and prudent man before trial. Merely because the verdict after trial is adverse to defendant’s contention is no reason for inflicting the penalty. Rohlfing v. State Farm Fire and Casualty Company, supra.

The trial court in its memorandum opinion indicated that the authorities relied upon by plaintiffs did not include precisely all the elements involved in the instant cause and differ in certain respects. However, the court said: “they do announce certain principles which tend to support plaintiff’s position.” Therefore, the trial court indicated that the authorities relied upon by plaintiffs did not unquestionably and clearly support plaintiffs’ position. We think defendant had the right to insist upon a judicial determination of the questions involved in the construction of the insurance

policy and on some issues of fact determinative of its liability without being penalized under the section of the statutes referred to. The question involved in the construction •of the insurance policy was new to this state. Further, we fail to find any evidence •of bad faith on the part of defendant when it insisted upon a judicial determination of the legal and factual questions. Apparently plaintiffs were of the same view for they failed to discuss this point in their brief.

The judgment of the lower court should be reversed and the cause remanded with directions to enter a new judgment in favor of plaintiffs and against defendant for $10,638.80. It is so ordered.

WOLFE, J., and WILLIAM M. KIM-EERLIN, Special Judge, concur.