267 A.D. 333 | N.Y. App. Div. | 1943
We have for review a judgment dismissing the plaintiff’s complaint on the merits. 'The action involved two public liability policies issued by the defendant to the plaintiff to protect it in the conduct of its business having to do with installation and repair of electrical apparatus, electrical equipment and electric motors. The plaintiff had a contract with the Central New Tort Power Corporation to change the electrical equipment of its customers in Oswego County, New York, from a frequency of twenty-five cycles to a frequency of sixty cycles. Thé contract was entered into on September 30, 1940. The contract required the plaintiff to furnish and maintain public liability policies and to furnish proof of the fact. The defendant on March 6, 1940, had issued a public-liability policy to the plaintiff which would expire in one year from date. On October 3, 1940, the defendant, at the request of the Central New York Power Company, issued a “ Certificate of Insurance ” certifying that it had issued the aforesaid public liability policy to the plaintiff and that it would advise said company “ of notice of cancellation or any changes affecting this certificate.” In that instrument, the defendant certified, in substance, that the policy covered “ Public Lia
George F. Chillson of the town of Hannibal, Oswego County, was a steady patron of the Central New York Power Corporation. He operated a large farm on which he raised turkeys for the market. On his farm Chillson had three Jamesway incubator hatchers for the hatching of turkeys. His hatchers were operated by electric motors which motors turned fans, also referred .to as impeller blades, which caused the air to circulate in the hatcher incubators thus rendering them suitable for the hatching of turkey eggs. Prior to December 23, 1940, Chillson’s motors and fans operated on a frequency of twenty-five cycles and the fans rotated counter clockwise. The incubators would not function properly if the fans were caused to rotate clockwise.
In pursuance of its' contract with the Central New York Power Corporation, and on November 18, 1940, the plaintiff began the work of converting Chillson’s electric system from a twenty-five cycle frequency to a sixty cycle frequency. By December 23, 1940, the plaintiff had supposedly completed the work called for by its contract. It left the job and was paid the contract price for its work. Properly* installed the motors and the fans would control the circulation of the air currents and the temperature and humidity in the incubators to the degree essential to the proper incubation and hatching of turkey eggs. The plaintiff, its agents and servants, in the performance of its work, removed the old motors and installed new motors designed to run on a sixty cycle frequency and carelessly and negligently so connected and wired the new motors as to cause the fans to rotate clockwise instead of counter clockwise as the plaintiff had agreed to do. The plaintiff did not inform Chillson of the fact that the motors had been so wired and connected that the fans would rotate clockwise.
The incubation season for turkeys opened at Chillson’s farm on February 20, 1941. Unaware of the fact that the plaintiff had so installed and wired the motors as to cause the fans to rotate clockwise when in operation, Mr. Chillson prepared the incubator hatchers for service and between that date and May 3, 1941, continued to operate the incubators with the result that the clockwise rotation of the fans either destroyed or so damaged the turkey eggs as to cause damage to Mr. Chillson in excess of the sum of $9,500. On May 3, 1941, the plaintiff, on notice of the improper hookup of the motors, sent itg
Plaintiff instituted this action to recover the sum of $7,662.01 being the amount expended by it in the defense, compromise and settlement of the Chillson action. The defendant answered denying liability on the following grounds: (a) that no accident occurred and Chillson suffered no damage during the performance of the plaintiff’s work at the Chillson farm; (b), that the loss or damage sustained by Chillson was not covered under the terms or conditions of the policies, or either of them, and said damages were expressly excluded from coverage under the terms of said policies; (c) that the compromise and settlement by the plaintiff with Chillson was had without the consent of the defendant and in violation of the terms and conditions of the policies and the plaintiff is barred from maintaining this action.
At the opening of the trial the parties waived a jury and stipulated to try the case before the Trial Justice on an agreed statement of facts. The facts as stipulated would entitle the plaintiff to recover unless barred by any or all of the interposed defenses. The parties stipulated in part:
“ 12. It is further stipulated that at the time of installing said motors, plaintiff’s employees through ignorance or mistake, carelessly and negligently connected and wired the same with the incubators so that the fans in said incubators rotated in an improper and reversed direction.”
“ 20. That the motors operated and propelled the impeller or fan blades as aforesaid, and the impeller blades controlled the air flow in said incubators; that the negligent acts of the plaintiff in installing the motors so that the fans ran in a reversed direction resulted solely and directly in an improper circulation of air currents and an improper maintenance of tern*338 perature and humidity in said incubators so that, when the turkey eggs were subsequently and in the ordinary course of incubation placed in the said incubators on the dates and in the quantities above set forth by said Chillson, said machines failed to properly incubate during the four week period of incubation and the spoiled hatches, damaged eggs and diseased poults resulted; 'that the negligent acts of the plaintiff’s employees in so installing the motors so that the fans ran in a reversed rotation were the sole cause of the failure of the above described number of turkey eggs to hatch, of the death of the number of turkeys that died soon after hatching, and of the diminution in size of the turkeys that survived.”
The learned trial court reached the conclusion “ that there was no accident when the motors were installed or at any time thereafter * * * ” and on that basis alone the complaint was dismissed.
We have seen that the policies covered accidents to person or property “ resulting from defective workmanship ” before “ the Assured’s work is completed.” It is conceded here that the plaintiff’s workmanship in installing the motors was defective and that Chillson’s damages were caused solely by reason thereof. This being the case, the plaintiff should recover providing Chillson’s loss was caused by accidental means and before the work of installing Chillson’s motors and converting his system to a sixty cycle frequency was completed. One can readily understand that the defect in the workmanship in hitching the motors so that the fans would rotate in the wrong direction easily pervaded the whole job-and that the plaintiff’s work was not completed until the defective work was corrected by the plaintiff. (Phillip v. Gallant, 62 N. Y. 256, 264; Spinner v. Dutton, 77 Misc. 112,114; Daniel v. New Amsterdam Casualty Co., 221 N. C. 75.)
Was the injury suffered by Chillson the product of an accident within the fair meaning of the policies? The learned trial court concluded that “ the normal growth and development of the eggs were impeded and interfered with, not by accident, but by certain environmental conditions brought into play by the negligent installation of the motors.” This conclusion overlooks the chain of events producing Chillson’s loss. There is no claim that the plaintiff’s servants wantonly or willfully hitched the motors so that the fans would rotate in the wrong direction. The hitching of the motors as they were hitched originally was, therefore, purely accidental. The whole group of events, beginning with the improper hitching of the motors
The case of Jackson v. Employers’ Liability Assurance Corp. (139 Misc. 686, affd. 234 App. Div. 893, 259 N. Y. 559) principally relied on below, is clearly distinguishable in point of fact. In that case causes, other than lack of heat, the cause assigned,
The third ground of defense, namely, that the plaintiff is barred from maintaining this action because its compromise and settlement of the Chillson action was prohibited by the provisions of the policy, is untenable because the defendant failed to perform its contract duty to defend the said action and its refusal to defend was a waiver of the conditions of the policies relied on. (Matter of Empire State Surety Co., 214 N. Y. 553, 564.)
The judgment should be reversed on the law, with costs, and judgment should be directed in favor of the plaintiff for the sum of $6,412.01 and interest, with costs.
All concur, except Taylor and Harris, JJ., who dissent and vote for affirmance on the ground that the loss for which damages are sought was not covered by the policies or either one of them.
Present — Crosby, P. J., Taylor, Dowling, Harris and McCurn, JJ. ;
Judgment reversed on the law, with costs, and judgment directed in favor of the plaintiff for the sum of $6,412.01 and interest, with costs.