author: BARRETT, Commissioner.

text:
    Wilma DALTON, Plaintiff-Respondent, v. KANSAS CITY TRANSIT, INC., a Corporation, Defendant-Appellant.
    No. 50847.
    Supreme Court of Missouri, Division No. 2.
    July 12, 1965.
    Lantz Welch, Kansas City, Quinn, Peebles & Hickman, Kansas City, of counsel, for respondent.
    Billy S. Sparks, Harold T. VanDyke, Kansas City, Linde, Thomson, „ VanDyke, Fairchild & Langworthy, Kansas City, of counsel, for appellant.
   BARRETT, Commissioner.

On September 3, 1959, Wilma Dalton, 44, a buckle machine operator for the Nelly Don Garment Company, was a passenger on a Kansas City Transit Bus. She boarded the bus at 15th and Cleveland Streets and her destination was the Craftsman’s Optical Company at 10th and Grand Avenue. There had been 15 or 20 passengers but as the bus left 12th Street there were but two passengers, Mrs. Dalton and Molly Jacobs. Mrs. Dalton intended to alight on “the other side” of 10th Street and she said that as the bus traveled west through 11th Street, “traveling pretty fast,” 30 to 35 miles an hour, she rang the buzzer and started walking forward toward the front of the bus. She could see ahead and there were no automobiles or vehicles approaching the left of the bus and she said, “Well, as we came up to 10th Street we were traveling all along there at a very fast speed, and as we approached 10th Street, why, he came to a real sudden stop right in the intersection of 10th. * * * And the operator, he threw out his hands. I just started plunging forward, just flew to the front as we came to this sudden stop, and as he did he threw out his arm to catch my fall.” She says that she “grabbed ahold of the pole” but it “tore loose” and she fell to the floor of the bus and was injured. Mrs. Jacobs corroborated Mrs. Dalton’s version of the occurrence. The bus operator, Gadberry, says that passengers alighted and the bus left 11th Street with the green light, that he “drove about 10 to 15 miles an hour till I got to 10th Street and I got the red light there and I stopped for the red light” making “a nice” gradual stop. He says that the two ladies started to the front of the bus at that point, with the bus in the center lane of a northbound three-lane trafficway “I started up and started across 10th Street and there was an automobile on my left cut in front of me to the right on 10th Street and I had to bring my bus to a quick stop.” He says that he brought the bus to a stop in 6 or 8 feet at a speed of about “three mile per hour,” and the ladies “come forward in the bus pretty quick” but he put out his arm and the younger lady, Mrs. Dalton, “didn’t fall down at all, the young woman didn’t; the old lady (Molly Jacobs, 73) fell down.” He says that Mrs. Dalton helped Mrs. Jacobs up, both said they were not injured and Mrs. Dalton filled out his card.

In June 1960, Mrs. Dalton was in an automobile accident which she described as minor and not disabling. In January 1960 a myelogram “indicated a protruding disc” but her doctors did not recommend surgery. On February 3, 1961, Mrs. Dalton was operated on, the surgeon “removed a degenerated and protruded disc at the L-S, S — 1 level on the left.” This injury and the necessity of the operation were ascribed to Mrs. Dalton’s fall in the bus on September 3, 1959. Mrs. Dalton submitted her case against the bus company upon the hypothesis that “it negligently caused, allowed or permitted said bus to suddenly stop with a violent lurch and jerk and in an unusual manner.” On behalf of the transit company there was a hypothesis “that in order to avoid a collision with said automobile the driver of the bus brought the bus to a stop in the intersection of 10th Street * * * and if you further find that in so doing the operator of the bus used the proper degree of care in the operation of the bus and for the safety of himself, the bus and the passengers thereon * * * and was not negligent as set out in other instructions, then your verdict must be for the defendant and against the plaintiff.” Nine members of the jury returned a verdict in favor of Mrs. Dalton for $35,000. Upon a nineteen-ground motion for new trial, including a claim of excessive verdict, the trial court required a remittitur of $10,000 and in the order made a specific finding as to the conduct of Juror Flaspohler.

Upon this appeal the bus company contends that Mrs. Dalton did not make a case of res ipsa loquitur as under her proof “there was no sudden stop with a violent lurch and jerk.” It is urged that the court prejudicially erred in giving two instructions submitting her theory as in any event “the case could only be submitted under specific negligence.” It is urged that the court erred in giving an instruction which defined “highest degree of care” as “the utmost care, caution, skill and vigilance which capable and very careful and prudent men, engaged in the business of operating motor buses as a common carrier transporting passengers for hire, would use and exercise under the same or similar circumstances to safely transport those who become its passengers.” And, despite the remittitur, it is urged that the final judgment of $25,000 is excessive.

But the meritorious and very difficult but determinative question is whether the trial court abused its discretion in refusing to grant the appellant transit company a new trial because of the misconduct of Juror Flaspohler in failing to disclose pertinent information on the voir dire examination. In requiring the remittitur and in overruling the motion for a new trial the court entered this as a part of its order: “The court further specifically finds that juror, Sylvester Flaspohler, did not intentionally fail to answer voir dire questions propounded by both counsel in an effort to conceal certain matters and further that said juror apparently possessed no malice or ill feeling against this defendant. The court further finds that said juror’s failure to divulge information appeared to the court to be a matter of misunderstanding rather than concealment and thus could not constitute grounds for granting defendant’s motion for new trial and therefore * * * the court overrules defendant’s motion for new trial.”

At the very outset plaintiff’s counsel admonished the jury panel to listen carefully and to answer all questions as their failure in this regard might result in their verdict being set aside. First he asked the panel whether any of them had ever been involved with his law firm. One of the jurors responded that the firm had represented him in an automobile-truck collision which was settled out of court and this juror was excused when he said that he would be “(m)ore sympathetic towards the lady” (Mrs. Dalton). Another juror said that counsel’s firm handled “a hit and run accident with a truck, involving my son, and they was handling the case for me” but the insurance company “went bankrupt.” Another juror had had business dealings with defense counsel’s firm.

Then plaintiff’s counsel made the inquiry: “Now I want to know if any of the members of this panel or those in their immediate family have been defendants in a lawsuit, where you have been sued by somebody.” A juror responded that a boy had run in front of his automobile January 14, 1961, but charges in police court were dismissed. Another juror said that a suit had been filed against him “but the disposition of it I never did know.” Following this plaintiff’s counsel said, “Now I am going to ask the converse of that question, the other side of the coin. Has anyone on this jury panel or those in your immediate family been forced to file a lawsuit against someone because you or the member of your family was an aggrieved party ? This would be a plaintiff in the case like Mrs. Dalton is here today.” One juror told about a suit he had filed to collect for injury to his automobile when hit by a truck. Another juror told about a 1950 suit involving an overcharge of rent under OPA which was settled out of court. Another juror told about a 1952 magistrate court suit to recover damages to his automobile, the case was settled out of court. A fourth juror told about his brother’s pending suit for neck and back injuries sustained in an accident.

Then plaintiff’s counsel made this fourth approach and put this question: “Now, have any of the members of this panel ever had a claim made against you for money — this also includes members of your immediate family. — -where someone claimed you owed them money, they didn’t necessarily go so far as to have to hire a lawyer and sue you but they made this claim against you?” A juror told about a claim made against him when a thief stole his automobile and injured someone.

Defense counsel in his turn reviewed some of the events related by jurors in response to plaintiff’s counsel then he inquired whether any of them had had controversies with the transit company or its predecessor. One juror told about satisfactorily settling a claim after a bus hit his automobile. Then counsel put the question: “Has any member of the panel ever had a claim for personal injuries against any person or any company or any partnership, any kind of a claim for personal injuries?” A juror asked whether that would include a claim his brother had involving a truck and a back injury “settled out of court.” Another juror inquired whether counsel also meant “disability through Workmen’s Compensation” and was informed that counsel was “going to get to that.” This juror said that for a broken finger and cut wrist his employer had paid medical expense. Another told about his brother’s pending suit for injuries and another told of his sister’s claim of 30 years ago when she was hit by a streetcar while in a safety zone. Defense counsel again inquired whether “a member of their family have a claim against anybody for personal injuries.”

And as he had forewarned defense counsel made this inquiry: “Now, Mr. Mergell told us about a Workmen’s Compensation case. I want to ask if any members of the panel have ever had a Workmen’s Compensation claim. That is where it is handled before the Workmen’s Compensation Commission if you are injured on the job and you are paid automatically, not a question of proving any negligence as in this case, but where because you are injured on the job you automatically are paid if you are injured by accident. Any member of the panel ever had an accident on the job where they were paid Workmen’s Compensation or were treated tty their employer under the Workmen’s Compensation law}” A juror told about a “smashed finger” and the payment of medical expense. Juror Mergell again mentioned his experience, another told about a nail in his hand, hospitalization and the payment of some compensation.

Plaintiff’s counsel given another opportunity again went into the question of suits and claims: “And Mr. VanDyke you noticed asked you quite a bit of questions about any claims made by you or members of your family. Now, sometimes these things slip your mind and, as I told you, an unintentional oversight on your part in answering one of these questions can have a verdict set aside. * * * So with that in mind, is there anyone else that can think of a claim having been made by themselves or members of their immediate family}” To this a juror responded and asked a question: “There was a case where I was thrown from a motor scooter in Lawrence, Kansas, and was injured slightly there and the insurance company made a settlement.” Plaintiff’s counsel said, “I am glad you brought that up. This is an example, now, of what Mr. VanDyke was describing to you as a claim. In other words, you don’t have to go out and affirmatively say to the wrongdoer that hurt you, ‘Give me some money,’ sometimes the wrongdoer will come forward as in your case and say, ‘Let me pay for what was done to you.’ This is a claim in the sense of the word as lawyers in court use it, so therefore, with that in mind, let’s go into this question a little deeper.” The juror then detailed his automobile-motor scooter experience and his signing a release. Another told of his wife being paid when she was “slightly injured” when a truck ran into the rear of a bus. Another juror told of an incident of 18 years ago when he slipped on a floor and fell and “they paid the doctor bill.” Counsel said, “That’s the type of thing we are looking for.” And immediately another juror said, “I assume since these others have come up I might have something in that — no claim. My daughter was in an automobile accident and had a broken arm. There was no suit and the insurance company is paying for it.”

The voir dire proceedings have been set forth in this detailed manner to demonstrate that the inquiries were not mere perfunctory questions, the subject of suits and claims by jurors or their families was exhaustive and painstaking. It was the principal subject of the entire process. This detailed résumé also places the problem in its precise context and factually serves to distinguish the cases. Juror Flaspohler was present throughout the entire examination and he asked no questions and gave no information as to any claims he may have had. It should also be noted in passing that at one point, when counsel for plaintiff renewed his inquiry and warned the jury against even unintentional oversight he said, “This bus company has very complete records on all claims made, so if there’s any doubt in your mind at all about it, let’s resolve it right now, because they know these things.” But other than this bare assertion by counsel there is nothing in this record to show what if any records the appellant may have had and certainly nothing to show that it had any record or knowledge of Mr. Flaspohler’s claims record. The only possible circumstance from which any inference could be drawn was the fact that the verdict was returned on January 30, 1964, and on February 13, 1964, appellant’s claims agent of over 40 years and a lawyer appeared at Mr. Flaspohler’s residence with a prepared affidavit which set forth his claims record. But this mere fact is of course insufficient to show that the appellant knew of Flaspohler’s record and when the claims attorney testified on the motion for a new trial no one asked any questions or established any facts as to the company’s knowledge or records and thus it does not appear that the appellant was lying in wait or sandbagging either the court or counsel for plaintiff. The only fact developed was that the claims agent obtained the material for the affidavit prepared by him “by investigation.” The consequence is that in these circumstances the court is not confronted, as has been suggested by at least one authority, with the necessity of re-examining one phase of Piehler v. Kansas City Public Service Co., 357 Mo. 866, 211 S.W.2d 459, and of saying whether knowledge of Flas-pohler’s claims was accessible to the appellant prior to or during the voir dire examination so that thereby the appellant waived or was precluded from urging his claims record as a basis of error or prejudice. Annotation 38 A.L.R.2d 624, 630. With this phase of the problem aside the appeal is concerned only with the general rules and whether there was an abuse of discretion in applying what has come to be the test in this jurisdiction of “whether or not he (the juror) was guilty of an intentional concealment” (Beggs v. Universal C. I. T. Credit Corporation, Mo., 387 S.W.2d 499, 503), which necessarily must mean “whether or not the appealing party has been prejudiced in regard to his case by the juror’s false answer to questions regarding prior claims.” 38 A.L.R.2d 1. c. 626.

When the claims agent presented his affidavit on February 13th Mr. Flaspohler refused to sign it saying that he first wanted to consult a lawyer. The agent made an appointment to return next day at one o’clock and that day Mrs. Flaspohler informed the agent that her husband had gone fishing. Mr. Flaspohler was subpoenaed to appear when the motion for new trial was to be heard on April 3, 1964, but when the deputy sheriff served the subpoena was informed that Mr. Flaspohler had suffered a heart attack and his testimony was not given until May 8, 1964. But previously, on February 24, 1964, an affidavit prepared for Mr. Flaspohler was executed and filed. The substance of this affidavit was that he had refused to sign the affidavit presented by the claims agent because “the facts stated therein were not true” and that the agent had threatened to send the sheriff out to take him to the courthouse. In his affidavit Juror Flas-pohler “remembers the accident in 1958 but did not feel that he had a claim since he did not have a lawyer and further that the insurance company had him treated by a doctor and that a man came out and paid him some money shortly after the accident in order to sign some papers.” He remembered the 1953 accident “but states that he was not injured in said accident and did not go to any doctors and does not remember being paid any money for injuries. He does remember that his car was fixed.” He “remembers being hurt different times on the job and that the company doctors looked after him but he never made a compensation claim for any disability.”

In brief the true facts were that on July 17, 1958, Mr. Flaspohler was a passenger in a motor vehicle involved in a collision on the intercity viaduct. He received nine treatments in St. Joseph’s Hospital for a back injury. There was also emergency room treatment and X rays. There was a doctor bill of $50.00, X ray $40.00 and on August 1, 1948, Mr. Flaspohler signed a release and was paid $500.00 for his personal injuries by the Farmers Insurance Group. An American Insurance Company file revealed that on December 26, 1953, Mr. Flaspohler’s automobile was involved in a collision with a General Mills vehicle and “was paid $150.00 bodily injury and $180.38 property damage.” While he claimed she was not a member of his “immediate family” it was developed on examination of Mr. Flaspohler that his granddaughter, now age 30, received a back injury when she was about 7 years old and as a result has been disabled most of her life.

As to his Workmen’s Compensation the records of his employer the Koch Refrigeration Company reveal this record: February 1, 1953, he was given treatment for “a rash on the body,” this only involved a doctor bill. On July 20, 1953 “he claims he popped his back” lifting a door and that involved payment for medical treatment. August 5, 1954, “foreign body in left eye” and on August 7,19S4, “ran screw driver in left wrist” and medical treatment was required and paid for. On April 7, 1955, “struck his right arm with a piece of rusty metal” and that involved medical payment. On January 13, 1956, there was a “strained hack moving a refrigerator, slipped on floor,” that required X rays and medical treatment and “patient will be able to resume light work on 1-17-56.” On March 30, 1959, there was a payment of medical' expense for “foreign object in eye.” There was medical payment of $116.00, hospital $249.50 and compensation payments of $141.15 for three and five-sevenths weeks’ lost time, this probably for the inhalation of fumes.

When Mr. Flaspohler testified on May 8, 1964, he said that he remembered the lawyers asking the jury panel questions about “claims” by the jurors but he said, “Yes, but I understood it — you would have to be a lawyer or something — * * * yes, I have had little personal injuries like anybody else, but I didn’t think anything of them. * * * I paid insurance for that and they took care of it.” He did not respond to counsel’s inquiries about on-the-job injuries although he recalled several of them and he heard other jurors responding and reporting injuries and claims. He said that he did not know that his on-the-job injuries were under the compensation law, “I’ll tell you, like I told you, I paid insurance every month and they had a company doctor to take care of us and I thought that was all of it.” At another point he said “if I’d thought that day (the day the questions were asked) it would have got me out of here I would have told you all them. I didn’t think it amounted to anything and that’s the reason I didn’t say it. I would have been out a whole lot sooner.” His interpretation of the questions or answers regarding automobile accidents was “I have never been involved in one myself at all.” He did not remember how much he had been paid for any injuries, he didn’t think it was $500.00, “they come down there and told me what they would do on my front porch and I told them, ‘Well, that sounded fair,’ and he sat right there and made a record of it and he’s still got it, I guess, just what I said.” Later, as to the $500 payment he said, “Well, I told you I don’t remember just what he paid me, but I have been paying insurance ever since I have been there and it breaks even one way or the other.” As to the 1953 incident, he said he received no injury, someone ran into his parked automobile and a man came out and said, “Take your car down on 18th and Grand. * * * Take your car down and have it fixed and we’ll pay it.” And he said, “That’s what I done. They paid the bill. I didn’t see a red cent of it.” But finally as to the questions on voir dire and the response of other jurors Mr. Flas-pohler said, “I remembered them, yes. * * * I didn’t think anything that I had amounted to anything. If I did, I would have spoke up and been out the door like some of the rest of them did, where I would like to have went.” Incidentally, Mr. Flaspohler was unemployed when the case was tried.

It would serve no useful purpose to analyze the undisputed facts or to characterize any of the testimony and indicate the reasonable and persuasive inferences. It is sufficient to say that Mr. Flaspohler unquestionably heard the questions and responses but nevertheless took it upon himself to judge whether his claims, even though small, were of sufficient magnitude or importance to disqualify him as a juror. With all deference, under the juror’s own testimony, he heard and understood and so undeniably his failure to reveal his claims record was intentional. In addition to his nondisclosure of claims, in point of fact Mr. Flaspohler’s affirmative vote was necessary to a finding of liability and it was necessary in fixing the amount of damages initially at $35,000. Bass v. Durand, 345 Mo. 870, 136 S.W.2d 988. While of course the fact of a nine to three verdict is not conclusive, particularly when the undisclosed claim is small and old and subject to being forgotten (Davis v. Kansas City Pub-lie Service Co., Mo., 233 S.W.2d 679), “(t)he part played by the questionable juror in the rendition of the verdict has been a factor occasionally, a new trial being required if his conduct appeared to be a real factor in the jury’s decision, but the verdict being allowed to stand if it was apparent that the jurors effect on it was not substantial.” 38 A.L.R.2d 1. c. 627. There is of course a discretion in the trial court particularly when the question of intention turns on credibility or there is some tangible basis for a finding of inadvertent omission but it is not believed that the requiring of a remittitur of $10,000 is an exemplification of an exercise of discretion as to this particular issue. Compare Webb v. Missouri-Kansas-Texas R. Co., 342 Mo. 394, 116 S.W.2d 27 and Bass v. Duran, supra.

There is also no point in distinguishing and matching cases. The respondent relies on those in which for various reasons a new trial was denied or in which it was held that there was no abuse of discretion in refusing to grant a new trial because of a juror’s nondisclosure of claims, to wit, the naive if not flighty lady in Mantz v. Southwest Freight Lines, Inc., Mo., 377 S.W.2d 414; and Hampy v. Midwest Hanger Company, Mo.App., 355 S.W.2d 415; Akers v. St. Louis Public Service Co., Mo., 370 S.W.2d 347 (where there was no “dissembling” and on the motion for new trial hearing all questions were promptly and forthrightly answered) ; Begley v. Adaber Realty & Investment Co., Mo., 358 S.W.2d 785; Barb v. Farmers Insurance Exchange, Mo., 281 S.W.2d 297, and Davis v. Kansas City Public Service Co., supra. On the other hand the appellant relies on the line of cases in which a trial court has sustained a motion for a new trial or this court, despite the overruling of a motion for a new trial, has been impelled to grant a new trial because of a juror’s nondisclosure of claims, to wit: Piehler v. Kansas City Public Service Co., supra; Triplett v. St. Louis Public Service Co., Mo.App., 343 S.W.2d 670; Brady v. Black & White Cab Co., Mo.App., 357 S.W.2d 720; Logsdon v. Duncan, Mo., 293 S.W.2d 944. Again with all deference to the trial court and again in realization of the severity of the penalty to an innocent plaintiff (Piehler v. Kansas City Public Service Co., supra), this appeal falls within the category of these latter cases, the juror admits the basic fact of an “intentional concealment” but excuses that he did not consider his claims important or significant. For the indicated reasons and in the particular circumstances the judgment is reversed and the cause remanded.

STOCKARD and PRITCHARD, CC., concur.

PER CURIAM.

The foregoing opinion by BARRETT, G, is adopted as the opinion of the court.

All of the Judges concur.


source: Caselaw Access Project

author: HIGGINS, Commissioner.

license: Public Domain

text:
    Hattie ARNOLD, Respondent, v. John H. EDELMAN and T. Lowrie Lyon, a Partnership, d/b/a Edelman-Lyon Company, Respondents-Appellants, Lumbermens Mutual Casualty Company, Garnishee-Appellant.
    No. 50962.
    Supreme Court of Missouri, Division No. 1.
    July 12, 1965.

      Albert J. Yonke, Kansas City, for respondent.
    Lane D. Bauer, Mari W. Privette, Shook, Hardy, Ottman, Mitchell & Bacon, Kansas City, for respondents-appellants Edelman-Lyon.
    Roy F. Carter, Kansas City, Sprinkle, Carter, Sprinkle & Larson, of counsel, for gar nishee-app ellant.
   HIGGINS, Commissioner.

Hattie Arnold recovered judgment against Lumbermens Mutual Casualty Company, garnishee, in sum $33,881.01, and garnishee has appealed. Edelman-Lyon has appealed from that portion of the judgment denying them attorneys’ fees from garnishee.

Prior to this garnishment proceeding, Hattie Arnold sued Edelman-Lyon for negligent failure to make proper setting of the panic exit device on revolving doors installed by them for the City of Kansas City, Missouri, and obtained judgment for $30,-000 damages which was affirmed on appeal. Arnold v. Edelman, Mo., 375 S.W.2d 167.

It was admitted that garnishee issued the insurance policy in evidence covering Edelman-Lyon, but garnishee denied liability under a products hazard exclusion endorsement alleging that the construction, erection, and installation of the revolving doors had been completed and possession relinquished to the City of Kansas City before plaintiff’s injury, and that coverage did not extend to Edelman-Lyon at such time. Upon trial before a jury all the evidence came from plaintiff and it included the transcript on appeal in Arnold v. Edelman, supra, and the contracts between Edelman-Lyon and the door manufacturer and between Edelman-Lyon and Kansas City.

Walter D. Myers, a professional engineer and assistant city engineer, testified that he was in charge of the city hall where the revolving doors were installed. Plans and specifications for repairing revolving doors in the city hall were written under his supervision. He certified that the job was completed November 21, 1957, and that he then accepted the job on behalf of the City and approved the October 8, 1957, invoice of Edelman-Lyon for payment. The invoice was paid December 16, 1957. The injury to Mrs. Arnold occurred October 23, 1957, and prior to that date the witness had received complaints about the doors collapsing. Upon receipt of such complaints he called Edelman-Lyon to make adjustments which was part of the understanding under the contract. On December 10, 1957, Low-rie Lyon of Edelman-Lyon advised him by note that “The revolving door wings are holding in this wind which is as strong as I have ever seen it. The guard in the lobby tells me that the wings haven’t collapsed since I tightened them November 30; however, they are still within code requirements.” There were no payments for the adjustments other than the contract price, it being intended that adjustments would be made until acceptance of the doors. Correspondence between the manufacturer and Mr. Myers showed that the writer, Ray Goad, a Mr. Graves, and Edelman and Lyon inspected the doors November 21, 1957, at which time the doors had been adjusted to withstand draft and wind pressures but would still collapse under emergency conditions. This was after Edelman-Lyon increased the tension on the panic exit device following Mrs. Arnold’s incident of October 23, 1957.

Mr. Myers also identified the scope of the work to be done by Edelman-Lyon as consisting of “furnishing all labor, tools, equipment, and supplies and performing all work necessary for and incidental to replace the north and south revolving doors with new ones and related mechanisms,” and he considered the duty of adjusting the doors to come within that scope, and that “we expect the contractor to come back and make final adjustments before any job is accepted.” The contract agreement stated: “ ‘To Complete the Work’ shall mean that all work required is complete and ready for final acceptance;” and, by reference the contract contained standard General Provisions of Contract applicable to all Kansas City contracts which stated: “Until work is accepted by the Director of Public Works, it shall be in the custody and under the charge and care of the contractor.” The contract also contained a certificate from Lumbermens Mutual Casualty Company to the City showing, among other things, that Edelman-Lyon had “Contractors’ Bodily Injury Liability $100,000/|300,000” in connection with “Replacement and overhauling of revolving doors” at the City Hall in Kansas City, Missouri.

The work was begun by Edelman-Lyon September 25, 1957, and the doors were in place for use October 9, 1957, but not accepted by the City until November 21, 1957. Edelman-Lyon adjusted the panic exit device on October 21, October 24, and October 30, 1957, and, in addition, tests were made on the doors November 21, 1957, by Mr. Goad, on which occasions the door was out of service. The City considered the adjustments as part of the installation because “we consider a job not fully installed until accepted by the City.”

Ray C. Goad testified that he was in the revolving door division of International Steel Company when the doors in question were supplied by that company for installation by Edelman-Lyon. He was in Kansas City November 21, 1957, to test these doors. He stated that upon call from a customer the installer returns to the job and makes adjustments of the door’s panic exit device. “(I)f he doesn’t he doesn’t get paid. * * * it is part of the job of installing the door and completing the installation.” Under the arrangement between Edelman-Lyon and the manufacturer it was also anticipated that Edelman-Lyon would continue servicing a door until final acceptance by the customer. “In the case of this particular job they would have to adjust it to suit the job’s conditions as they found them.” He indicated that the adjustments cannot be made until after the door is in place for some time, and that this was true of this job because there were problems in the city hall due to “stack draft” which is a pressure encountered in tall buildings caused by the rise of heated air leaving a minus pressure around doors at ground level. The necessary servicing is a duty of the contractor until final acceptance by the customer.

John H. Edelman of Edelman-Lyon went with Mr. Goad to inspect the job November 21, 1957. He also testified that he generally installs the doors with the panic exit device at its factory setting, and that they adjust the device to meet the conditions of the job. “Your aim is the lowest setting that is correct for the job to hold it, and this is a necessary part of finishing it up.” The Edelman-Lyon payroll record showed that they had four people on the job from “10/4 to 10/10”; that they sent Jesse Curtis, a mechanic, to the job on October 21, 1957; that they sent Curtis to the job again on October 24, 1957, after a complaint October 21 of the doors collapsing and the injury October 23 to Mrs. Arnold; that they would not have sent Curtis there if the door had been adjusted satisfactorily; that all these items were a part of the job and under the lump sum contract payment. His experience was that ten to fifteen per cent of the doors required adjustments from factory settings on the panic exit device; that no extra charges were made for the adjustments, and responsibility was on his company until final acceptance by the City. He did not consider the job complete until adjustments were made and final acceptance by the City occurred. Lumbermens Mutual examined the contract with the City in order to provide Edelman-Lyon with the coverage required by the contract. Mr. Edelman and Mr. Lyon went to the job site October 23, 1957, when Mrs. Arnold was injured.

Hugh Dayton, a licensed architect familiar with construction in Kansas City, testified that adjusting and testing of the panic exit device is a necessary and incidental part of the installation of revolving doors, and that it is necessary for the installer to return and make the adjustment after the doors have been put in place “because you can’t always on the first adjustments come up with the right answer. It has to be tested a number of times, quite often, very often.”

T. L. Lyon of Edelman-Lyon testified that he supervised this particular job with the actual work being done by Jesse Curtis and Paul Williams. Their first work was done August 27, 1957, and the major portion of the work was installed by October 9, 1957, at which time door keys were given to the City. After October 9 Curtis was sent to the job to check and adjust the doors. He described the operation: “(T)he tensioning device which held the wings in radial position was adjustable and by tightening the spring tension on the device, both on the top and bottom hinges, you can increase the amount of tension which holds the wings in radial position. You remove the inspection plates on each wing at top and bottom hinge, tighten up the tension devices, and then put the inspection plates back on the doors. * * *

“Q. How do you determine what adjustments have to be made after the doors are put in the aperture? A. By the actual conditions, actual experience, you might say. Q. Do you return when the customer calls and tells you his problem, that the doors aren’t operating properly? * * * A. Yes, we do that.”

They had a workman on the job October 21, 1957, as a result of a complaint call from Mr. Myers, and after Mrs. Arnold’s injury on October 23, “we sent our workman back and told him to tighten up the panic exit devices so that they wouldn’t collapse except in accordance with the specifications. * * * That was done on October 24, 1957.” On November 21, 1957, he, Mr. Edelman, and Mr. Goad made further inspection and testing of the doors to see if they would release, and on November 30, 1957, he tightened the panic exit device. The adjustments of October 21, October 24, November 21, and November 30, 1957, were made as part of the contract price, and the work then done was necessary and incidental to the installation of the revolving doors. The invoice for collection of the contract price was sent before final acceptance so that payment could be received as soon as possible in view of the thirty to sixty-day average time for an invoice to be processed for payment by Kansas City. He did not consider his job completed on October 23, 1957.

The transcript on appeal in Arnold v. Edelman, supra, showed that plaintiff’s verdict-directing instruction required a finding by the jury that “the said doors had not been accepted by the City on or before October 23, 1957, * * 375 S.W.2d 1. c. 173 [4].

At the conclusion of plaintiff’s evidence, which was all the evidence in the case except on the matter of defendants’ attorneys’ fees, all parties offered motions for directed verdict. Plaintiff’s motion was sustained; those of defendants and garnishee were overruled.

Garnishee’s point on appeal is that “The Court Erred in Overruling Garnishee’s Motion for Directed Verdict Because under the Evidence the Plaintiff Did Not Make a Case Against the Garnishee under the Insurance Policy Issued by It Because Liability for Plaintiff’s Injury Is Specifically Not Covered by the Exclusion of ‘Products Hazard’ Coverage.” In arguing its point garnishee concludes with a contention that “The evidence in the instant case shows that both the product (the revolving door) had been relinquished to the City and the operations (the installation of said door) had been completed and that the accident occurred away from premises owned, rented or controlled by the insured and is thus, squarely within the exclusionary clause. For this reason garnishee’s Motion for Directed Verdict should have been sustained * *

The insurance policy admittedly in force at all times material to this case was a comprehensive general liability policy by which garnishee agreed “To pay on behalf of the insured (Edelman-Lyon Co.) all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person and caused by accident.” The schedule of coverage showed: “(D) Products (Including Completed Operations) Coverage Excluded, See Endt. 1.” An endorsement styled “Exclusion of Products Hazard” read: “It is agreed that the policy does not apply to the products hazard as defined therein.” That definition appears under the policy section headed “Conditions” :

“(c) Products Hazard. The term ‘products hazard’ means
“(1) goods or products manufactured, sold, handled or distributed by the named insured or by others trading under his name, if the accident occurs after possession of such goods or products has been relinquished to others by the named insured or by others trading under his name and if such accident occurs away from premises owned, rented or controlled by the named insured or on premises for which the classification stated in division (A) of the declarations excludes any part of the foregoing; provided, such goods or products shall be deemed to include any container thereof, other than a vehicle, but shall not include any vending machine or any property, other than such container, rented to or located for use of others but not sold;
“(2) operations, if the accident occurs after such operations have been completed or abandoned and occurs away from premises owned, rented or controlled by the named insured; provided, operations shall not be deemed incomplete because improperly or defectively performed or because further operations may be required pursuant to an agreement; provided further, the following shall not be deemed to be ‘operations’ within the meaning of this paragraph: (a) pick-up or delivery, except from or onto a railroad car, (b) the maintenance of vehicles owned or used by or in behalf of the insured, (c) the existence of tools, uninstalled equipment and abandoned or unused materials and (d) operations for which the classification stated in division (A) of the declarations specifically includes completed operations.”

Similar provisions have been before Missouri courts in two previous cases. A virtually identical products hazard provision was held to be misleading and ambiguous and therefore to be construed most favorably to the insured in Rafiner Elevator Works, Inc. v. Michigan Mutual Liability Co., Mo., 51,267, 392 S.W.2d 240, decided this date; and in Kissel v. Aetna Casualty and Surety Co., Mo.App., 380 S.W.2d 497, 506 [1], the products hazard exclusion was held to have no application on the theory that no product was involved in the insured’s business of dirt moving. Although helpful, neither of those cases presented the same situation we have here.

In view of the vagueness and ambiguity in the products hazard provision as indicated by Rafiner Elevator Works, Inc. v. Michigan Mutual Liability Co., supra, and, moreover, where such provisions are used to narrow, cut down, or restrict comprehensive general liability coverage already granted, a good case for coverage might be grounded on the theory of resolving all such ambiguities in favor of broad general coverage. Utchen v. American Casualty Co., Mo.App., 356 S.W.2d 102. See for examples, Heyward v. American Casualty Co., D.C.S.C., 129 F.Supp. 4; Mc-Nally v. American States Insurance Co., 6 Cir., 308 F.2d 438; Nielson v. Travelers Indemnity Co., D.C.Iowa, 174 F.Supp. 648; Kendrick v. Mason, 234 La. 271, 99 So.2d 108; McAllister v. Century Indemnity Co., 11 N.J. 611, 94 A.2d 345; Maretti v. Midland National Insurance Co., 42 Ill.App.2d 17, 190 N.E.2d 597; Bituminous Casualty Corp. v. R & O Elevator Co., 8 Cir, 293 F.2d 179, affirming 194 F.Supp. 452. In our view of this case, however, we assume without deciding that the revolving door was a “product” and its installation an “operation,” because the facts show as a matter of law that the job undertaken by the insured was not completed and therefore the exclusionary clause would not operate to eliminate coverage.

The evidence in this case is undisputed and, under the evidence, the job contracted by Edelman-Lyon for Kansas City was not complete on October 23, 1957, the date of plaintiff’s injury. None of the parties or witnesses considered the door installation complete until it was accepted by Kansas City on November 21, 1957. All of the evidence showed that adjusting the panic exit device and testing the collapsing feature of the wings was an essential part of the contract and work, and the job could not be accepted until this was accomplished. The evidence showed also that the adjustments and testing required for the completion of such a job cannot be done until after the door is placed in position and used under the conditions existing where it is installed. Under the contract governing this job all work was under the custody, charge, and care of Edelman-Lyon until acceptance by the City. Even though the door was installed in the building, the job could be found to be complete only upon final acceptance by the City which could not occur prior to adjustment and testing of the door which did not occur until after plaintiff’s injury.

A number of cases from other jurisdictions support the view that we have taken of this case. Representative is Daniel v. New Amsterdam Casualty Co., 221 N.C. 75, 18 S.E.2d 819, in which a plumbing company was to disconnect a hot water heater and remodel it for a room heater. When the plumber sealed the jacket he left some water inside which turned to steam when the heater was fired, causing the heater to explode at sometime following installation. The insurance company resisted the action on the strength of a products hazard clause. On the matter of completion the court said, “We do not consider that the work is complete within the meaning of the insurance contract so long as the workman has omitted or altogether failed to perform some substantial requirement essential to its functioning, the performance of which the owner still has a contractual right to demand.” 18 S.E.2d 1. c. 820 [3]. Garnishee would discount this holding on the theory in Baker v. Maryland Casualty Co., 73 R.I. 411, 56 A.2d 920, that whether the work had been completed to the satisfaction of the customer was of no importance. Even so, that court did recognize the question whether the contractor had actually discontinued all further operations on the customer’s premises, and application of that test alone to the facts of our case leads to the conclusion that Edelman-Lyon had not discontinued operations as of the date of Mrs. Arnold’s injury. Garnishee also points to the rejection of the holding in Daniel v. New Amsterdam Casualty Co., supra, in Foster Trailer Co. v. United States Fidelity and Guaranty Co., 190 Tenn. 181, 228 S.W.2d 107. There, a city contracted for repairs to a truck but took the truck from the contractor prior to completion and undertook to complete the repairs itself. Its improper repair resulted in injury to an employee. The court held that no repair operation by the insured was in progress because insured lost control of the work and therefore no liability attached under the policy. We do not see any inconsistency as urged by garnishee because it is obvious that the city relieved the contractor of any further repair operation, while in our case the installation operation continued through the time required for adjustment, testing, and ultimate acceptance.

Significant also is Heyward v. American Casualty Co., supra, cited with approval in Rafiner Elevator Works, Inc. v. Michigan Mutual Liability Co., supra. There the contractor had finished installing a gas line to apartment 14E but work remained in respect to other units of the housing authority. 14E was rented before completion of the entire authority and an injury occurred to an occupant of 14E. Against the contention of the insurer that the work on the 14E gas line was completed, the court held that where there was one contract for the entire project the insurer would not be permitted to amend its policy to cause the exclusion clause to read “if the accident * * * takes place after any portion or part of such operations have been completed or abandoned.” Appropriate to our case, the court said: “In the present case there is no showing that the entire work which plaintiff had contracted to do had been completed, nor is there any showing that the same had been accepted by the owner or that the plaintiff had been paid for the same.” 129 F.Supp. 1. c. 11 [9]. That court also said, “Even if the policy in question did not cover plaintiff’s operations after the same had been completed, as contended * * *, the defendant is not entitled to summary judgment for the reason that the record does not show that the entire work plaintiff had agreed to perform had been completed.” 129 F.Supp. 1. c. 10 [9], Our case more strongly favors coverage because the undisputed evidence shows that the contracted installation had not been completed, whereas in the cited case the gas line installation was complete as to unit 14E.

General Cas. Co. of Wisconsin v. Larson, 8 Cir., 196 F.2d 170, also presented a situation akin to our case. Larson was employed to clean a furnace in connection with the installation and servicing of an oil burner. A connection between the door and burner was improperly made, oil leaked from it and a fire resulted after the cleaning but prior to inspection. As in our case, neither the customer nor the contractor considered the work completed. The insurance company relied on a products hazard exclusion defense which was rejected, the court saying, “The work done by him (Strand) was only a part of the job undertaken by Larson; and until Larson performed the part of the work to be done by him the job was not ‘completed.’ ” 196 F.2d 1. c. 174 [6],

In addition to those cases previously discussed garnishee has cited other cases which it contends support its position. In Standard Accident Ins. Co. v. Roberts, 8 Cir., 132 F.2d 794, Roberts sold and installed a gas operated refrigerator. Following installation gas escaped and injured the customer’s family. The case is distinguished on its facts because the installation had been completed and accepted by the customer. No further operations remained as they did under our insured’s contract with Kansas City. A salesman in U. S. Sanitary Specialties Corp. v. Globe Tndem-nity Co., 7 Cir., 204 F.2d 774, placed wax on a courthouse floor for a demonstration and a lady fell on the spot and was injured. The court reasoned that when the wax was placed on the floor the operation, i. e., the demonstration, was completed. There was no contract to remove the wax or perform other operations and the ruling is therefore consistent with our case.

In similar ways other cases cited by garnishee are hot in point because the product in each case had been installed, all operations completed, and the job accepted by the owners. In New Amsterdam Casualty Co. v. Ellzey, 5 Cir., 240 F.2d 618, it was stipulated that installation of the window fan involved had been completed. Operations were completed in Kelly-Dempsey & Co. v. Century Indemnity Co., 10 Cir., 77 F.2d 85, where a dynamite cap exploded after the contractor had finished construction of a pipeline and had surrendered possession and control to the owner. Likewise, in Pan American Insurance Co. v. Cooper Butane Co., 157 Tex. 102, 300 S.W.2d 651, the court found that the work of replacing a leaky filter valve and filling a butane tank had been completed prior to an accident to persons working in a cistern who inhaled gas fumes which settled there before the repair was made. The case was distinguished from Lloyds Casualty Insurer v. McCrary, 149 Tex. 172, 229 S.W.2d 605, where the insured installed a gas system and left the premises knowing of a defective pressure gauge and with intent to return and repair the gauge. As in our case, the court held that the operation of installing the gas system was not completed and the insurer was liable on its policy. Berger Bros. Electric Motors v. New Amsterdam Casualty Co., 293 N.Y. 523, 58 N.E.2d 717, involved an accident due to defective workmanship in the installation of hatchery equipment, but it occurred after the installation was completed and the insurer was held not to be liable under its completed operations exclusion. In Crook v. Kalamazoo Sales and Service, 82 R.I. 387, 110 A.2d 266, the obvious distinction from our case is that the hazards exclusion contained a standard for determining an operation to be complete, in that “The occupancy of any portion of a building, or the use of any equipment or construction project for its intended purpose, shall be proof of the completion of such portion, equipment or project.” 110 A.2d 1. c. 268. In Butler v. United States Fidelity & Guaranty Co., 197 Tenn. 614, 277 S.W.2d 348, 350, 351, “(t)he declaration * * * alleges that the repairs which had already been completed were negligently made.” Obviously the injury did not occur while work was being performed. In Baker v. Maryland Cas. Co., supra, insured cleaned a cesspool, poured acid into it, replaced its cover, and left the premises, considering the work completed. The customer sustained injury which resulted from negligent and careless replacement of the cesspool cover. In holding the operation completed the court said, “There can be no question that plaintiff abandoned operations on the * * * premises after she had satisfied herself * * * that no further operations on her part were required to complete the work which she had contracted to do * * *. The evidence * * * is undisputed. An accident occurring after that date would therefore not fall within the * * * contract of insurance.” 56 A.2d 1. c. 922. This, too, is consistent with our case. Finally, garnishee cites Clauss v. American Insurance Co., D.C.Pa., 214 F.Supp. 442, where operations were held completed when an accident occurred to a motorist driving on a boulevard at a point where plaintiff had crossed it in constructing a sewer. The policy defense was proper because the work had been accepted by the city prior to the accident.

As previously indicated, we reject garnishee’s contention and conclude that plaintiff did make a case against garnishee because the undisputed evidence shows that the job of installing, adjusting and testing the revolving door was an incomplete operation at the time of plaintiff’s accident, and the products hazard exclusion was therefore inoperative.

In respect to insured’s claim for attorneys’ fees, additional facts are pertinent. The original litigation, Arnold v. Edelman, supra, was®defended and appealed by Lumbermens Mutual Casualty Company under nonwaiver agreements made with the insured, Edelman-Lyon. While the appeal was pending plaintiff commenced this action. Garnishee, in its answers to interrogatories exhibited by plaintiff, denied responsibility for the judgment against Edelman-Lyon in a manner contemplated by the agreements. Edelman-Lyon employed counsel and filed a denial of garnishee’s answer and asked for an adjudication that garnishee be held liable to plaintiff to the extent of the judgment and for attorney fees in connection with the garnishment proceeding. The trial court denied the request for attorneys’ fees and in seeking review of the denial Edelman-Lyon requests additional fees in connection with this appeal.

In seeking attorneys’ fees Edelman-Lyon has not made any charges of bad faith; it does not rely on any contract or statute; there is no provision for attorneys’ fees in the insurance policy; and application of the “vexatious delay” statute, Section 375.420, RSMo 1959, V.A.M.S., is specifically denied. It is claimed only that garnishee’s resistance of the garnishment was a breach of contract resulting in damage to the insured to the extent of attorneys’ fees in connection with the garnishment in which the insured was otherwise successful.

The rule at common law in actions at law is that “ * * * the successful party is only entitled to recover his taxable costs, in which the fees he pays counsel are not included. ‘In general,’ says Sedgwick, ‘the law considers the taxed costs as the only damages which the party sustains by the defense of the suit against him, and these he recovers by the judgment in his favor.’ ” St. Louis R. Co. v. Southern Ry. Co., 138 Mo. 591, 39 S.W. 471, 472 [1], In Willis v. American National Life Ins. Co., Mo.App., 287 S.W.2d 98, 107 [16], the court said: “The recovery of attorney’s fees by the successful litigant is not a matter of right which follows automatically from and because of the fact that justice of his claim has been established; attorney’s fees are recoverable when and only when they are provided for by contract (for instance a note) or allowed by statute.” The law is similarly stated in Duncan v. Townsend, Mo.App., 325 S.W.2d 67, 71 [7, 8]: “ * * * Ordinarily, attorneys’ fees are recoverable only when called for by contract or provided by statute, or as an item of damage when their incurrence involves the wronged party in collateral litigation, or occasionally, when a court of equity finds it necessary to adjudge them in order to balance benefits.” The last case cites State ex rel. Moore v. Morant, Mo.App., 266 S.W.2d 723, upon which insured relies here. That was an action against a constable and his surety for false return on a summons upon which a judgment was rendered against relators. A writ of garnishment issued and relators hired attorneys to set aside the garnishment and settle with the judgment creditor. The attorneys’ fees were there held to be a natural and proximate damage resulting from the wrongful return. We do not consider the case as authority for attorneys’ fees in the present case because of the agreement by which the insurer was permitted to make policy defenses including denial of coverage. In other words, even though insured’s decision to hire attorneys was occasioned by insurer’s position in the garnishment action, the insured consented by the nonwaiver agreements to that action by the insurer.

Also cited in Duncan v. Townsend, supra, was Allstate Insurance Co. v. Hartford Acc. & Ind. Co., Mo.App., 311 S.W.2d 41, 48 [12], where the court held that an unsuccessful attempt to bring Hartford into the case as a third-party defendant was analogous to a declaratory judgment action to determine policy liability and that the action did not fall in one of the classes in which attorneys’ fees are recoverable. Thus, the insurer could have had the matter of coverage settled in a declaratory judgment action against its insured and not have been responsible for the attorney fees in the insured’s defense of such action.

The insured cites a number of cases which are not in point because they are cases in which the insurer has refused to defend or they do not involve a situation such as we have where the insured has agreed to permit the insurer to defend and appeal in behalf of the insured while reserving at all times the right to deny or litigate the existence of coverage. Accordingly, we deny the request for attorneys’ fees.

The judgment is affirmed.

HOUSER and WELBORN, CC., concur.

PER CURIAM.

The foregoing opinion by HIGGINS, C., is adopted as the opinion of the court.

All concur.


author: HOLMAN, Judge.

text:
    RAFINER ELEVATOR WORKS, INC., Appellant, v. MICHIGAN MUTUAL LIABILITY COMPANY, Respondent.
    No. 51267.
    Supreme Court of Missouri, En Banc.
    July 12, 1965.
    Rope, Shanberg & Rope, Herbert M. Rope, Sherman L. Gibson, Kansas City, for appellant.
    Robert S. McKenzie, McKenzie, Williams, Merrick, Beamer & Stubbs, Kansas City, for respondent.
   HOLMAN, Judge.

Plaintiff filed this suit in an effort to recover the amount expended in the successful defense of a damage suit. It contends that defendant was obligated to make the defense under the terms of a comprehensive general liability policy of insurance issued to plaintiff by defendant. It is agreed that the aggregate amount of the attorney fees and costs involved is $1,387. A jury was waived and the case was submitted to the trial court upon an agreed statement of facts. The court entered judgment for defendant. Plaintiff appealed and the Kansas City Court of Appeals adopted an opinion affirming the judgment. Upon application of plaintiff we transferred the case here because the opinion appeared to be in conflict with the opinion in Kissel v. Aetna Casualty & Surety Co., Mo.App., 380 S.W.2d 497, which had been adopted by the St. Louis Court of Appeals a short time before. The Kissel case had not been published at the time this case was submitted and was not called to the attention of the Kansas City Court of Appeals.

Plaintiff was engaged in the business of manufacturing, repairing, and servicing elevators. At the time of and prior to the accident here involved plaintiff was a party to a written elevator service agreement with the Friedman Meat Company which owned the building at 524 Walnut Street in Kansas City. Under the terms of that agreement plaintiff was obligated (for a fee of $6 per inspection) to make periodic bimonthly inspections of the freight elevator in that building and to clean, oil, and grease the machinery involved, and to make necessary minor adjustments if such could be made in less than 30 minutes on regular inspection days. Plaintiff’s employee inspected the elevator on November 19, 1959. Thereafter, on December 17, 1959, one John W. Rowe, an employee of Friedman, was allegedly injured in the fall of that elevator.

On June 9, 1960, Rowe instituted a suit against Rafiner (plaintiff here) and the owner of the building in the Circuit Court of Jackson County, Missouri, alleging in his petition therein that he had been injured by reason of the fall of a freight elevator in the building located at 524 Walnut Street, and further alleging that the elevator motor and gear were in a defective condition and that Rafiner knew of said condition, or could have discovered same by the “exercise of care,” and failed to warn said Rowe of the dangerous condition.

Plaintiff forwarded the petition in that case to defendant and requested that it defend the suit under the terms of the policy hereinafter described. There was evidence to indicate that the casualty was caused by overloading the elevator which caused the teeth on a gear and pinion to be broken off, thus permitting the elevator to fall. On June 24, 1960, defendant notified plaintiff that it would not defend the Rowe suit because it involved “Products Coverage” which was not a risk covered by plaintiff’s policy. Plaintiff Rafiner thereupon employed counsel, defended the suit, and obtained a verdict in its favor.

The insurance policy here involved (which was admittedly in force on the date of the casualty) contained a general insuring clause by which defendant agreed “to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person and caused by accident.” It also provided that “with respect to such insurance as is afforded by this policy, the company shall: (a) defend any suit against the insured alleging such injury, sickness, disease or destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudulent * *

From the foregoing it clearly appears that defendant was obligated to defend the suit heretofore mentioned unless there is found in the policy a provision containing an applicable condition or exclusion which would relieve defendant from the general obligation heretofore quoted. The sole exclusion relied on by defendant is that relating to “products hazard.” One of the eight separate endorsements attached to the policy provides that “the policy does not apply to the products hazard as defined therein.” In that connection the policy contains the following:

“(c) Products Hazard. The term ‘products hazard’ means
(1) goods or products manufactured, sold, handled or distributed by the named insured or by others trading under his name, if the accident occurs after possession of such goods or products has been relinquished to others by the named insured or by others trading under his name and if such accident occurs away from premises owned, rented or controlled by the named insured * * *.
(2) operations, if the accident occurs after such operations have been completed or abandoned and occurs away from premises owned, rented or controlled by the named insured; provided, operations shall not be deemed incomplete because improperly or defectively performed or because further operations may be required pursuant to an agreement; provided further, the following shall not be deemed to be ‘operations’ within the meaning of this paragraph: (a) pick-up or delivery, except from or onto a railiroad car, (b) the maintenance of vehicles owned or used by or in behalf of the insured, (c) the existence of tools, uninstalled equipment and abandoned or unused materials and (d) operations for which the classification stated in division (a) of the declarations specifically includes completed operations.”

It is defendant’s contention that it was relieved of the obligation to defend the Rowe case because the admitted facts show that the situation involved comes within the policy definition of “products hazard.” An examination of that definition will disclose that subparagraph (1) relates to goods or products manufactured, sold or distributed. It accurately describes the usual subject matter which would normally be included in a definition of “products.” However, subparagraph (2) purports to include in the definition of “products” the word “operations.” The word “operations” has a number of meanings, as indicated by the following definitions: “9 a: a business transaction esp. when speculative * * * b: the whole process of planning for and operating a business or other organized unit * * * c: a phase of a business or a business activity * * * 10: the operating of or putting and maintaining in action of something * * Webster’s Third New International Dictionary. The singular “operation” is defined in Black’s Law Dictionary, Fourth Ed., as: “Exertion of power; the process of operating or mode of action; an effect brought about in accordance with a definite plan; action; activity.” The definition in (2), supra, would appear to include any activity relating to labor or the rendition of services even though no tangible goods are handled or produced. Although the meaning of subparagraph (2), supra, is not clear, it could be contended that if the “operations” occur away from the premises of the insured and have been completed, an accident occurring at the site of such operations would be a “products hazard” which would be excluded from coverage.

It is difficult indeed to understand how “products” could reasonably be defined to include operations consisting solely of work or services. The average person would consider “products” to mean goods or tangible items usually manufactured, sold, or distributed. No business man would reasonably expect to find a service operation excluded from coverage by including it in a definition of “products.” To include an exclusionary provision such as (2), supra, under a definition of “products” in a general comprehensive liability policy would appear to be misleading and deceptive.

In the Kissel case, supra, the St. Louis Court of Appeals had before it a policy the material provisions of which were the same as those in the instant case. There the plaintiff was a contractor. Some time after certain grading had been completed several adjoining landowners filed separate suits to recover damages to their land which they alleged had occurred as a result of the negligent manner in which the grading had been done. The insurer refused to defend because “products hazard” was excluded by an endorsement and it contended that, since the work had been completed, there was no coverage because of the “operations” clause which was identical with (2), supra. Kissel settled the cases and brought suit to recover the amount expended. The trial court found for plaintiff and the court of appeals affirmed that part of the judgment. In so holding, the court stated:

“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. * * * [A]s 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.’ (Parentheses ours.) (171 F.Supp. l.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. * * * 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.” 380 S.W.2d l.c. 506, 507.

Cases cited in Kissel which support the conclusions therein are McAllister v. Century Indemnity Co. of Hartford, 24 N.J. Super. 289, 94 A.2d 345, Kendrick v. Mason, 234 La. 271, 99 So.2d 108, Hercules Company, Inc. v. Royal Indemnity Co., D.C., 171 F.Supp. 746, Neilson v. Travelers Indemnity Co., D.C., 174 F.Supp. 648 (opinion adopted by U.S. Court of Appeals, 8 Cir., 277 F.2d 455), Hoffman & Klemperer Co. v. Ocean Accident & Guarantee Corp., 292 F.2d 324 (7th Cir.1961), and McNally v. American States Ins. Co., 308 F.2d 438 (6th Cir.1962).

We approve the holding and reasoning in the Kissel case and rely upon it as authority supporting our conclusion herein. We do recognize, however, that there is one possible factual difference between Kissel and the case at bar. In Kissel the court attached considerable significance to the fact that the plaintiff, a contractor, did not sell any products. In our case it is fair to assume that the plaintiff probably manufactured and installed some elevators, although undoubtedly a large portion of its business (as in this case) consisted of servicing existing elevators. In one sense of the word plaintiff did handle a product. However, an elevator is one large item which, when installed, became a part of the building. In that view of the situation plaintiff would be in the same category as contractors and subcontractors which, in Kissel, were held to be performing services and not handling “products” as that word is generally understood. In that connection, see Heyward v. American Casualty Co. of Reading, Pa., D.C., 129 F.Supp. 4, in which a products liability exclusion similar to the instant one was held not to preclude coverage for the insured, a plumbing and heating contractor, for accidents arising either before or after the housing project had been completed. We have concluded that the instant case and Kissel are sufficiently alike factually as to make Kissel applicable in determining the issue here.

Another provision in the policy tends to add to the difficulty in understanding it. Under “Exclusions,” it is provided that “this policy does not apply: (a) to liability assumed by the insured under any contract or agreement except (1) a contract as defined herein * * *.” “Contract” is defined in the policy as, “if in writing, a lease of premises, easement agreement, agreement required by municipal ordinance, sidetrack agreement, or elevator or escalator maintenance agreement.'” It therefore appears that some sort of liability relating to written contracts for elevator maintenance is covered by the policy. It is not apparent just what that coverage is and it may be, under the general insuring clause, that it would cover the type of negligence alleged in the Rowe suit. We need not determine that question but mention it simply to demonstrate the ambiguity of the policy as relates to the situation before us.

We hold that subparagraph (2), supra, when considered as a part of a definition of “products hazard” — when considered in connection with the “Contracts” provisions, supra — and when sought to be applied to the factual situation here involved, is misleading and ambiguous and therefore will be construed most favorably to the insured. When so construed we hold that it did not exclude coverage in this case and that defendant was obligated to defend Rafiner in the Rowe suit.

The judgment is reversed and the cause remanded with directions to enter a judgment for plaintiff.

All concur and STONE, Special J., concurs.


author: STOCKARD, Commissioner.

text:
    Ray RUTLEDGE and Peggy Rutledge, his wife, Appellants, v. Eleanor BALDI, Respondent.
    No. 51020.
    Supreme Court of Missouri, Division No. 2.
    July 12, 1965.

      Leland C. Bussell, Joe C. Greene, Bus-sell, Hough & Greene, Springfield, for appellants.
    Glenn A. Burkart, Buell F. Weathers, Mann, Walter, Powell, Burkart & Weathers, Springfield, for respondent.
   STOCKARD, Commissioner.

Plaintiffs have appealed from a judgment for defendant, entered pursuant to jury ver-diet, in their suit for $25,000 for the wrongful death of their minor son.

David Lee Rutledge, four years of age at the time of his death, was playing in a toy pedal car in the driveway of his home. He rolled backward down the driveway into the street where he was struck by an automobile operated by defendant and sustained injuries resulting in his death.

Plaintiffs contend that the trial court erred in refusing to sustain their motion for a directed verdict at the close of all the evidence on the issue of liability and in refusing to submit the case to the jury on the issue of damages only. They assert that the evidence was undisputed that David was in full and unobstructed view of the defendant, that the defendant failed to see what looking clearly would have revealed, that David, being four years of age, was incapable of contributory negligence, and that “the evidence of all the witnesses, including that of the defendant, was of such a clear and undisputed character that no question of fact was left for the finding of the jury, and the evidence conclusively showed the defendant to be negligent as a matter of law and that such negligence caused the death of David Lee Rutledge.”

Plaintiffs’ motion for a directed verdict filed at the close of all the evidence assigned as grounds therefor, pursuant to Civil Rule 79.01, V.A.M.R., that (1) “the plaintiffs have proved, by their witnesses and evidence, that the defendant was guilty of negligence resulting in the death of David Lee Rutledge,” (2) the defendant “has failed to prove any defense to the plaintiffs’ charge that she was negligent * * and (3) the defendant “has failed to prove any contributory negligence on the part of the deceased * * * or any contributory negligence imputable to the plaintiffs herein.” Evidence was presented by the defendant, and neither in her pleadings nor by her testimony or by admission of counsel did she admit negligence or liability. It is obvious, without the need of discussion, that plaintiffs’ motion, as worded and presented to the trial court, was properly overruled, and plaintiffs’ point could be disposed of on the theory that a trial court is not to be convicted of error on appeal when the ruling made at the trial was correct. However, assuming the reasons now assigned on this appeal in support of the motion by plaintiffs for a directed verdict had been presented to the .trial court, the ruling was still correct. The rule is properly and well stated in Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 558, 559, as follows: “In a case where the allegations of the petition are denied by the answer, and the plaintiff offers oral evidence tending to support the allegations of the petition, the defendant is entitled to have the jury pass upon the credibility of such evidence even though he should offer no evidence himself. The court has no right to tell the jury that it must believe the witnesses. The jury, in the first instance, is the sole judge of the credibility of the witnesses and of the weight and value of their evidence, and may believe or disbelieve the testimony of any one or all of the witnesses, though such evidence be uncontradicted and unim-peached.” See also Beezley v. Spiva, Mo., 313 S.W.2d 691, 695; Schaefer v. Accardi, Mo., 315 S.W.2d 230. Plaintiffs rely on and quote from Rogers v. Thompson, 364 Mo. 605, 265 S.W.2d 282, the following statement: “this general rule is not applicable in unusual situations where defendant in his pleadings or by his counsel in open court admits plaintiff’s claim, * * * or where there is no real dispute of the basic facts supported by uncontradicted testimony essential to a claim or an affirmative defense.” Aside from the fact that in the Rogers case the judgment for plaintiff was reversed because of an erroneous instruction, and only one judge concurred in the opinion with four judges concurring in result only (that is, the reversal because of the erroneous instruction) and two judges dissenting, defendant’s evidence, or the evidence taken as a whole, did not establish negligence on the part of defendant as a matter of law, but only authorized a finding of negligence by the jury depending upon the facts it found concerning the circumstances of the accident. Whether negligence should or should not have been inferred from the facts of the occurrence, as determined by the jury from a consideration of the credibility of the witnesses, was within the province of the jury and not the court.

We note in passing that plaintiffs argue, in support of another point in their brief, that this is in part a circumstantial evidence case, and that it was necessary “for the jury to draw two crucial inferences, from the direct facts, in order for them to find for the plaintiffs.” If this argument is correct, it demonstrates that plaintiffs could not have been entitled to a directed verdict. We base our ruling, however, on the reasons previously set forth. The trial court did not err in submitting the issue of liability to the jury.

Plaintiffs also assert error on the part of the trial court in sustaining defendant’s objection to testimony of Mrs. Doris Cornwell, a rebuttal witness for plaintiffs. A statement of the circumstances leading up to the objection and ruling is necessary.

Charles Garner, who investigated the accident in his then capacity of deputy sheriff, testified that when he went to defendant’s home he found her “in an extreme state of shock,” and “most” of the information he received was “from the father [defendant’s husband] and the son [age eleven] that was with Mrs. Baldi at the time of the accident.” He further testified that the son, in the presence of defendant, stated to him that defendant “was just traveling west in the 900 block there, headed for home, and at a slow speed, 5 to 10 mile an hour, and she heard something, they heard something under the car and didn’t know what it was and she looked back in the rearview mirror and seen the child laying in the street, and of course, stopped.” The son also related, according to Mr. Garner, that he and defendant had “stopped once and was looking at a house on the south side of the street, under construction, and was looking at the homes along the street” at the time “this occurred.” On cross-examination of defendant she was asked whether “the reason you didn’t see David was because you were looking at the houses on the left as you went up the street,” and she replied that it was not, and that she “was not looking at the houses.” She further testified that she had not told anyone that she was “looking to the left at that house and * * * just started up and heard a thump." Other evidence was to the effect that as defendant was driving toward her home she stopped in front of a driveway to observe some construction work, and then drove westward at a speed of five to ten miles an hour to the point of the accident at plaintiffs’ driveway 244 feet distant.

Plaintiffs called Mrs. Cornwell as a rebuttal witness who testified that she went to the scene of accident. The following then occurred:

“Q. I will ask if Mrs. Baldi made any reference to what happened?
“Mr. Burkart: Now, we object to that. That is too general a question and I don’t think thus far it is in rebuttal of anything that has been testified to up to now.
“The court: I expect you had better make an offer of proof on that.
“Mr. Greene: We offer to prove and intend to prove by this witness that [apparently here there was a change of thought not reflected in the transcript] the foundation has been laid by the testimony, by direct denial by the defendant, Mrs. Baldi, that she told anyone that she was looking to her left. We intend to prove by this witness that she had, at the scene of the accident, said that Mrs. Baldi was stopped at the Harrison house and she had just started up and the accident occurred. [Italics added],
“Mr. Burkart: That doesn’t disprove anything that’s already been said.
“The court: You offer to prove that she said what this witness is going to testify to?
“Mr. Hough: Yes, sir. Your Honor,' Mr. Greene asked Mrs. Baldi on cross-examination if she told anyone that she had stopped to look at the house to the left, and just started up when this accident occurred. Those were the words she used.”

The court then stated that there had been no proper foundation for impeachment, and the witness was excused.

Plaintiffs’ contention on this appeal is that the “offered testimony was an admission [against interest], not merely an impeachment by a prior inconsistent statement,” and therefore, it was prejudicial to exclude it. They cite Ozbun v. Vance, Mo., 323 S.W.2d 771; Nelson v. Tayon, Mo.Sup, 265 S.W.2d 409; Hudlow v. Langerhans, 230 Mo.App. 1160, 91 S.W.2d 629; and Rutledge v. Ballance, Mo.App., 375 S.W.2d 214, to the effect that an extrajudicial admission against the interest of a party is admissible. They also rely on Dorn v. St. Louis Public Service Co., Mo.App., 250 S.W.2d 859, in support of their contention that the wrongful exclusion of such evidence was prejudicial, and State v. Martin, Mo., 56 S.W.2d 137, that such admission, “being admissible as independent evidence” could be shown without a warning question. We do not question these rulings or the principles there announced. However, in none of these cases, except State v. Martin, was the evidence offered in rebuttal.

It is clear from what has previously been set out that plaintiffs offered the testimony of Mrs. Cornwell on rebuttal to impeach a denial by defendant in her testimony, to quote plaintiffs’ counsel, “that she told anyone that she was looking to her left.” However, the offer of proof was no more than that the rebuttal witness would testify that defendant said she “was stopped at the Harrison house and she had just started up and the accident occurred.” An offer of proof should be “specific and definite,” Kinzel v. West Park Investment Corporation, Mo., 330 S.W.2d 792, 796, and it may be assumed that the party making it will state it as favorable as he can do so. There was nothing in the offer of proof to the effect that the rebuttal witness would testify as to any statement by defendant that she was looking to her left, or that she -said she was or was not looking at any particular place. We conclude that the testimony was not admissible for the purpose the trial court was advised that it was being offered.

As previously noted, plaintiffs now argue that the statement of defendant to which Mrs. Cornwell would testify was a declaration against interest, and for that reason it was admissible and it was error to exclude it. The trial court has considerable discretion in admitting and excluding testimony in rebuttal which was available and should have been offered in the presentation of the case in chief. Peters v. Dodd, Mo., 328 S.W.2d 603; Schmitt v. Pierce, Mo., 344 S.W.2d 120; Parrott v. Kisco Boiler & Engineering Company, Mo.App., 332 S.W.2d 41. This testimony was available to plaintiffs in the presentation of their case in chief, or at least there is no contention that it was not, and a trial court should not be convicted of error in excluding evidence on rebuttal when it was not requested to exercise its discretion and admit it. We do not rule that the testimony of Mrs. Cornwell would not have been admissible as a declaration against interest in plaintiffs’ case in chief. We do rule that it was not error to refuse it at the time and under the circumstances it was offered.

Plaintiffs next assert it was error for the court to give, at the request of defendant, Instruction 7 which was as follows:

“The Court instructs you that in your deliberations you should be governed solely by the evidence introduced and admitted in evidence.
“You have no right to indulge in guesswork, conjecture, surmise or speculation, outside of and beyond the scope of the evidence, but you must confine yourselves to the facts detailed in evidence, and to the inferences to be reasonably drawn directly therefrom.”

Plaintiffs do not cite any case which holds this or a similar instruction to be preju-dicially erroneous. In their brief they quote from an unidentified case which they assert sets forth the following test as to whether such an instruction is erroneous: “Did the instruction, taken alone or in conjunction with other instructions of the court, tell the jury that it, the jury, was not permitted to surmise or speculate upon the facts in evidence in the process of drawing reasonable inferences therefrom.” Plaintiffs cite several res ipsa loquitur cases in which an instruction similar to Instruction 7 was held not to be prejudicially erroneous, but in which it was stated that the instruction was not commended for use in such cases. See West v. St. Louis Public Service Co., 361 Mo. 740, 236 S.W.2d 308; McCormack v. St. Louis Public Service Co., Mo., 337 S.W.2d 918; and Stephens v. St. Louis Public Service Company, Mo., 276 S.W.2d 138. Plaintiffs also cite Gennari v. Prudential Insurance Company of America, Mo., 335 S.W.2d 55. That was a circumstantial evidence case, and by the instruction in that case the jury was told that its finding “cannot rest upon conjecture or speculation upon the part of the jury, but must be found by the jury from the facts given in evidence in the case, * * *.” There was no provision in the instruction advising the jury that it could draw reasonable inferences, and it was held that the members of the jury “might conclude that the intended meaning of the instruction was that they could not draw reasonable inferences from the facts in evidence.” Because of this and another instruction the judgment was reversed.

Plaintiffs contend that this case is a circumstantial evidence case in part, and that Instruction 7 is misleading because it forbids the jury to “surmise and speculate” on the direct facts in evidence “in arriving at a reasonable inference.” They rely on the language previously set out from an unidentified case, and'a statement in West v. St. Louis Public Service Co., supra, that the instruction in that case was not reasonably susceptible of the meaning that “the jury was not permitted to surmise or speculate upon the facts in evidence in the process of drawing reasonable inferences therefrom.” We have some difficulty in understanding how an inference which is the result of “surmise or speculation” upon the facts could be reasonable. However, it is not necessary or appropriate now to review the propriety of the language used in the West and certain other cases. It is sufficient to say of Instruction 7, as the court did of the challenged instruction in the West case, that it does not prejudicially limit the jury in its process of deliberations to make reasonable inferences from the evidence in the case. When the meaning of Instruction 7 is determined from a consideration of it in its entirety it advises the jury that (1) in its deliberations (which include the process of making reasonable inferences from the evidence) it should be governed solely by the evidence, (2) and, conversely, it should not indulge in guesswork, conjecture, surmise or speculation outside of and beyond the scope of the evidence, and (3) the jury should confine itself to the facts in evidence and the inferences reasonably to be drawn therefrom. These are correct statements and we do not consider them to be confusing or misleading. They do not restrict the jury in drawing reasonable inferences from the evidence. Instruction 7 was not prejudicially erroneous.

Plaintiffs next assert prejudicial error resulted from Instructions 6, 7 and 8, all cautionary instructions. Instruction 7 has previously been set out. Instructions 6 and 8, respectively, were as follows:

“The Court instructs the jury that in considering what your verdict will be neither passion, prejudice, sympathy nor the relative condition of the parties to the suit should influence you in any manner in deciding this case for it is your sworn duty to lay aside all such feelings and be governed solely by the evidence as you have heard it in the trial and the law contained in the instructions.”
“The Court instructs the jury that the claim of the plaintiffs against the defendant is based upon the alleged negligence of the defendant as submitted to you in other instructions. It does not devolve upon the defendant to prove that she was not negligent, but the burden is on the plaintiffs with reference to the issue of the alleged negligence of the defendant, and the plaintiffs must prove such negligence of the defendant by the greater weight of the credible evidence in the case.” (Italics in both instructions added).

Plaintiffs emphasize the above italicized phrases and refer to the word “solely” in the first paragraph and the words “confine yourselves” in the second paragraph of Instruction 7. They then assert that the issues in a cause of action need not be established by direct and positive evidence of all the operative facts, citing Phillips v. Stockman, Mo.App., 351 S.W.2d 464, and that when these three instructions are read together a jury would conclude that in resolving an issue it could not draw reasonable inferences from the evidence. We are not able to agree.

The giving of a cautionary instruction substantially the same as Instruction 6 has been held to be in the trial court’s discretion. Lukitsch v. St. Louis Public Service Co., 362 Mo. 1071, 246 S.W.2d 749, 755. In our opinion Instruction 6 is a correct statement of the applicable rule. All the instructions are to be read together, and in view of the provision in Instruction 7 that the jury may draw reasonable inferences from the evidence, no jury of reasonably intelligent persons would believe that Instruction 6 restricted them in drawing such inferences. Instructions substantially the same as Instruction 8 have been held proper in Gardner v. Turk, 343 Mo. 899, 123 S.W.2d 158; Doherty v. St. Louis Butter Co., 339 Mo. 996, 98 S.W.2d 742; Montgomery v. Ross, Mo., 218 S.W.2d 99; Christman v. Reichholdt, Mo.App., 150 S.W.2d 527. It appears that'plaintiffs’ principal criticism of this instruction is that it referred to the “greater weight of the credible evidence in the case” instead of only to the “greater weight of the credible evidence.” Each of these cautionary instructions were directed to a different area of consideration by the jury, each constituted a correct statement of the applicable law, and when read together no reasonable jury could have been caused to believe that it could or should not draw reasonable inferences from the facts determined by the jury to have been established by the evidence. The challenge against them is without merit.

We find no error prejudicial to plaintiffs for any reason assigned or presented on this appeal.

The judgment is affirmed.

BARRETT and PRITCHARD, CC., concur.

PER CURIAM.

The foregoing opinion by STOCKARD, C., is adopted as the opinion of the Court.

All of the Judges concur.