Citations
- 178 F.2d 750
Full opinion text
L. HAND, Chief Judge.
Both parties appeal from a summary judgment in an action upon a policy of liability insurance. The complaint was in two counts, of which the judgment dismissed the first, and granted the relief demanded in the second. Judge Ryan’s opinion in the district court states the positions of the parties and the relevant facts, completely and accurately, and we shall not repeat them, 'but will proceed at once to the discussion of the legal questions involved. The validity of the first count depends upon whether the insured, the Trefflich Pet Shop, Inc., had “become obligated to pay by reason of the liability imposed upon him (sic) because of the hazards defined in the Special Provisions” of the policy. The “Special Provisions” declared that the hazards included “bodily injury * * * caused by accident * * * arising out of (a) the ownership * * * or use of the Premises or the conduct of the business * * * carried on at the Premises,” and (b) “the ownership * * * or use of the elevators described in the Declarations.” Item three of the “Declarations” was a “Description of Elevators,” and it was left blank except that under the caption, “Number of elevators” was written the word “None.” The eighth item of the policy was entitled “Exclusions,” and provided that “this insurance does not apply” to nine kinds of liability, separately lettered, of which the fourth, (d), was “to the ownership, maintenance or use of any elevator, unless described herein.” The defendant was therefore liable to the insured —and to the plaintiff under the New York Insurance Law — only in case the liability of the insured did not arise out of the ■“use” by the insured of an elevator. The plaintiff wished to buy a monkey; and monkeys were kept on the fifth floor. In order to take the plaintiff thither, the president of the insured led him to the door of an elevator, opened it, slid up a protecting gate, and beckoned the plaintiff to step in, which he did and fell to the bottom of the shaft. Was that a “use” of the elevator by the insured? We agree that in Marcus v. United States Casualty Company the ■“exclusion” was broader; it read: “bodily injuries sustained by reason of any elevator.” A customer might well be injured “by reason of” an elevator which the insured had not “used,” especially as the word, “elevator,” was defined to include the “shaft or hoistway.” For example, he might fall down a shaft, the door of which had been carelessly left open; his injuries would not then have arisen out of the insured’s “use” of the elevator in his dealing with the customer; and to that the exclusion should be confined. On the other hand, unless the insured’s invitation to the plaintiff to step into the elevator was a “use” of it, that word must be limited to occasions in which the insured in some way physically manipulated some part of it. Even so, the insured’s president opened the door which led to the shaft and pushed up the vertically sliding gate; and the term “elevator,” as used in the policy, like the same term in Marcus’ case, supra, included “the shaft, hoistway, or other appliances or parts thereof.” However, we do not wish to limit “use” to occasions in which the insured manually operates some “part” of the elevator. As always, the language is to be interpreted by its purpose, and the purpose was to exclude liabilities occasioned by the insured’s availing itself of