Appeal, No. 169, Jan. T., 1951, from judgment of Court of Common Pleas No. 2 of Philadelphia County, June T., 1947, No. 5485, in case of Aaron Armon et al., trading as Armon & Co. v. The Aetna Casualty & Surety Company. Judgment reversed.
Horace Michener Schell, with him Manuel Sidkoff, for appellants.
George M. Brodhead, with him Joseph W. Henderson and Rawle & Henderson, for appellee.
Before Drew, C.j., Stern, Stearne, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE HORACE STERN
This litigation is largely concerned with the proper construction to be placed upon certain ambiguous terms of an insurance policy.
Plaintiffs have for twenty-five years been engaged in the wholesale jobbing of carpets and rugs at 35 South Second Street, Philadelphia, a building five stories in height. In 1946 they obtained from defendant Insurance Company a water damage policy for which they paid the prescribed premium. While it was in force, on May 21, 1947, a heavy rainstorm occurred and water came into the building damaging their goods to the extent of $4,599.54. Defendant refused to pay the loss, -- the amount of which it admitted, -- because it denied liability under the terms of the policy. A jury found a verdict in favor of plaintiffs, but the court entered judgment for defendant n.o.v.
The facts are practically undisputed. It appears that the roof of the building sloped toward a drain or downspout designed, and ordinarily adequate, to discharge the rain water from the roof, but on this occasion it had become blocked with mud, stones and pieces of wood, with the result that a large puddle of water formed on the roof to the height of some 12 or 13 inches. A few months before the issuance of the policy plaintiffs had entered into an agreement with a contractor for the erection of an elevator shaft in the building from the basement to the fifth floor, with a penthouse, or structure for housing the power, which extended to a height of about 15 feet above the roof. This work, except for the installation of the elevator tracks and car, had been completed a couple of months before the occurrence of the rainstorm from which the influx of water resulted. Around the base of the penthouse there had been built flashings, extending upward about 8 inches from the roof and for several inches over the roof, for the purpose of making a watertight joint in the angle between the penthouse wall and the surface of the roof, and protected by tin in such manner that when rain would hit the wall it would run harmlessly off onto the roof and down the spout. The penthouse and the flashings were admittedly well built and wholly free of any defects in construction. On the occasion in question the water from the puddle on the roof, overtopping the flashings, found its way between them and the wall of the penthouse, and thence down along the outside of the wall of the elevator shaft through all the floors of the building.
The first question for determination is whether plaintiffs made out a prima facie case of defendant's liability within the coverage of the policy, which insured "against all direct loss and damage caused solely by the accidental discharge, leakage or overflow of water... from within the following source or sources: ...
rain or snow admitted directly to the interior of the building through defective roofs, leaders or spouting,...." Defendant would have this provision construed to mean that the water must come through a defective spout in the sense of escaping therefrom through a break or leak in its structure. Having in mind, however, the well-established rule that if an insurance policy is reasonably susceptible of two interpretations it is to be construed in favor of the insured in order not to defeat, without plain necessity, the claim to indemnity which it was the insured's object to obtain,*fn* we cannot accede to defendant's suggested construction of this provision. On the contrary, we must accept the obviously more just and practical interpretation ascribed to it by plaintiffs, namely, that the word "through" means "by reason of" or "because of", and that the word "defective" is not limited in meaning to defectiveness in the physical structure of the spout, but includes also any defect in its efficient operation whereby it fails to function for the purpose for ...