Berger Bros. Electric Motors, Inc. v. New Amsterdam Casualty Co.

Desmond, J.

(dissenting). When plaintiff’s employees left the Chillson farm they thought they had done a proper job of hooking up the motors to the incubator fans. Some months later the farmer, sharing that mistaken belief, turned on the

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fans, only to find out, after great damage had been done, that the motors had been so connected up that the fans ran the wrong way, with the result that the turkey eggs could not be hatched out. Surely there was then an accident and resulting accidental damage to the eggs. We are now told, however, that defendant’s policy excludes coverage for liability for that particular accident. The policy is being construed by the majority of this court as if it covered only accidents occurring while plaintiff’s workmen were still actually at work. If such a meaning had been intended, it would have been easy to say so. What the policy actually says is that it excludes accidents occurring after plaintiff’s work has been “ completed.” In no real or reasonable sense can it be said that the work of connecting up the fans was

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completed ” when it was so done that the fans would not perform their allotted function at all, but would damage the eggs, instead of hatching them. Such a job is no more

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completed ” than would be the repair of an electric clock with its hands left running backwards, or of an electric refrigerator so hooked up that it would not lower the temperature, or of an electric lamp that would not light. The Appellate Division, we think, was correct when it said here that the mistake of plaintiff’s workmen so pervaded the whole job that it could not be considered

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completed ” when they left the Chills on farm on December 23d. Actually they did return and complete it some months later, after the damage to the eggs had been discovered. The application we make of the word “ completed ” to the facts of this case does not deprive the policy exception of all force. The work, we suppose, might be considered “ completed ” if the appliances had been left in usable condition even though the materials or workmanship were so defective that later use might some day cause an accident. We hold only that when the workmen left the farm on December 23d, the work of -rewiring the fans had not been “ completed,” as that word is ordinarily used in common speech.

The judgment below should be affirmed, with costs.

Lehman, Oh. J., Loughran, Rippey and Lewis, JJ., concur with Thacher, J.; Desmond, J., dissents in opinion in which Conway, J., concurs.

Judgment accordingly.