Opinion
No. 28584.
July 14, 1953.
APPEAL FROM THE COURT OF COMMON PLEAS OF CAPE GIRARDEAU COUNTY, J. HENRY CARUTHERS, J.
Not to be reported in State Reports.
Jack O. Knehans, Cape Girardeau, for appellant.
J. Grant Frye, Cape Girardeau, for respondents.
This is a suit on an all-risk personal property floater policy. In the trial court a jury rendered a verdict for $1,200 in favor of the insureds, Raymond and Mabel Harvey, and the insurer has appealed from the judgment rendered on the verdict.
The single question on this appeal is whether an insurance policy insuring personal property against all risks of loss or damage but not insuring "* * * against deterioration, moth, vermin and inherent vice; against damage to property * * * occasioned by or actually resulting from any work thereon in the course of any refinishing, renovating or repairing process" covers a loss to carpeting resulting from the act of a third person employed by the insureds to spray the carpeting with a liquid solution for the purpose of preventing moth infestation and damage. The carpeting was laid wall to wall throughout three downstairs rooms and the halls of plaintiffs' home. Mrs. Harvey had seen some flying millers or moths in the upstairs portion of her home, and she and her husband concluded that they should have the carpeting treated as a matter of precaution "to prevent and protect against moths." Both she and her husband testified positively that there were no moths in the carpeting. They employed Charles Nolte to spray the carpeting as a preventive measure. At plaintiffs' invitation Nolte inspected the carpeting and found no moths in it, although in the process of doing the spraying he found one hole in the carpeting under a buffet in the dining room. In it there was some moth excreta. The solution used was a killing agent, composed of 94% insecticide oil and the balance chemicals. Stains and discolorations appeared, which damaged the carpeting and substantially reduced its value.
Appellant's position is that if a peril specifically excluded from coverage, such as damage from moths, sets other causes in motion which result in a loss, the peril excluded is to be regarded as the proximate cause of the entire loss so as to bring the loss within the exclusion provision and beyond the coverage of the policy. Appellant claims the benefit of the converse of the rule laid down in Cova v. Bankers Shippers Ins. Co. of New York, Mo.App., 100 S.W.2d 23, that where the peril specifically insured against sets other causes in motion which, in unbroken sequence and connection between the act and the final injury, produces the final result for which the insured seeks to recover, the peril insured against will be regarded as the proximate cause of the entire loss.
One difficulty with this contention is that there is no showing that the peril specifically excluded (damage caused by moths) set other causes in motion. There was no evidence that damage by moths caused the employment of Nolte to apply the chemicals which damaged the carpeting. It was the fear of moth infestation and damage that prompted the action of plaintiffs in employing Nolte. He was employed to prevent and protect the carpeting against moths as a preventive measure. It was only during the process of applying the spray material that he discovered the one slight evidence of infestation. There was no evidence as to the size of the hole, or that the hole caused any damage, or the amount of any such damage.
Furthermore, the process of spraying as a preventive measure to prevent moth infestation did not constitute work in the course of a "refinishing, renovating or repairing process." By no stretch of the language could it be regarded as "refinishing" the carpeting. Nor is it "renovating." To "renovate," according to Webster's International Dictionary, Second Edition, among other things, means "To renew, make over, or repair; restore to freshness, purity, a sound state, newness of appearance, etc. * * *." Renovation, or restoration, involves a return from an abnormal or damaged state to a normal, sound state. It does not contemplate a preventive measure whereby an effort is made to insure the continuation of a normal, sound state. Nor is it "repairing." To "repair," according to the dictionary, supra, means "To restore to a sound or good state after decay, injury, dilapidation, or partial destruction; * *. To restore or reinstate, as in former standing. * * *." Black's Law Dictionary, Fourth Edition, defines "Repair" as follows: "To mend, remedy, renovate, to restore to a sound or good state after decay, injury, dilapidation, or partial destruction" The same definition of "repair" is to be found in Sharp v. Quincy, O. K. C. R. Co., 139 Mo.App. 525, 123 S.W. 507. In order for the application of a moth-killing spray to carpeting to constitute the process of "renovating" or "repairing" there must have been a pre-existing infestation of or injury to the carpeting by moths; in other words, an unsound, abnormal, impaired state as the result of the action of the moths. No such condition was shown. In fact, the opposite was shown.
The words "refinishing, renovating or repairing process" are plain and unambiguous. Plain language must be given its plain meaning, but insofar as the words are open to different constructions, that most favorable to the insured must be adopted. Central Sur. Ins. Corp. v. New Amsterdam Cas. Co., 359 Mo. 430, 222 S.W.2d 76.
If the insurer desired to exclude all loss or damage occasioned by processing or working upon the property insured, it should have issued its policies with a provision expressly so stating. For example, in Wibbelman v. Home Ins. Co., 6 Cir., 194 F.2d 262, cited by appellant, the policy expressly excluded liability "`for loss or damage occasioned by processing or any work upon the property.'" In that case summary judgment was rendered for the insurer in a suit to recover for damages caused when a storage firm mistakenly sprinkled certain chemicals on a fur coat to preserve the fur, as a preventive against moths and vermin. The difference between a policy which expressly limits the exclusion to work done "in the course of any refinishing, renovating or repairing process," and one which excludes all damages resulting from "any work or process," without limitation, is apparent.
No error appearing, the Commissioner recommends that the judgment be affirmed.
The foregoing opinion of HOUSER, C., is adopted as the opinion of the court.
The judgment of the Cape Girardeau Court of Common Pleas is, accordingly, affirmed.
BENNICK, P. J., ANDERSON, J., and DEW, Special Judge, concur.