Daniel v. New Amsterdam Casualty Co.

*77 Sea well, J.

After accepting liability in more general terms, the policy seeks to restrict the coverage to injuries sustained during the progress of the work — declining liability after “assured’s work is completed.” The controversy here is over the proper definition of the word “completed” as used in the policy to mark the time when liability ceases.

The majority of the Court are of the opinion that the charge to the jury at the trial goes too far, since the jury may have been led to infer that the job could never in fact and in law be considered as completed until an ideal state of perfection had been reached beyond that reasonably contemplated in the contract, which would make the attempted restriction meaningless and unavailing. But under the evidence in this case we are equally unable to adopt the view of the defendant that the work should be held completed as a matter of law.

We have no general definition of “completeness” or “completion” which would be of universal application and service. The factual situation in each case must control, but there are some outstanding considerations which may serve as a guide.

Completion is an independent fact which cannot be determined by the act or intention of a workman who may cease work regarding the job as completed, nor wholly by the conduct of the owner who without knowledge of the condition pays off before actual completion. It took a meeting of the minds to create the contract, and it should take a like meeting of the minds to discharge or abrogate it before substantial compliance with its terms. Without considering any termination of the contractual relation in this manner, as none is disclosed in the evidence, the contract itself is the most important factor bearing upon completion of the work.

We do not consider that the work is complete within the meaning of the insurance contract so long as the workman has omitted or altogether failed to perform some substantial requirement essential to its functioning, the performance of which the owner still has a contractual right to demand.

There is evidence here from which the jury might infer that by reason of the omission on the part of Alphin Plumbing and Heating Co. to do work essential to the functioning of the heater in the manner intended and called for in the contract, the work at the time plaintiff sustained her injury had never reached that condition of completeness that would render the restrictive clause in the policy operable.

The motion for judgment as of nonsuit was properly overruled.

But the instruction to the jury above noted must be held for error entitling the defendant to a New trial.

Stacy, O. J., took no part in the consideration or decision of this case.