August A. Busch & Co. of Mass. v. Liberty Mut. Ins. Co.

• Decision Date: 18 May 1959
• Citation: 158 N.E.2d 351,339 Mass. 239
• Parties: AUGUST A. BUSCH & CO. OF MASSACHUSETTS, Inc., and another, v. LIBERTY MUTUAL INS. CO. and another.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 351

158 N.E.2d 351

339 Mass. 239

AUGUST A. BUSCH & CO. OF MASSACHUSETTS, Inc., and another, v. LIBERTY MUTUAL INS. CO. and another.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 5, 1958.

Decided May 18, 1959.

Thomas D. Burns and Frank L. Kozol, Boston, for plaintiffs.

Thomas H. Mahony, Boston (Edward F. Mahony and George T. Padula, Boston, with him), for defendants.

Before WILKINS, C. J., and RONAN, WILLIAMS, COUNIHAN and WHITTEMORE, JJ.

WILLIAMS, Justice.

This is a suit in equity under G.L. c. 231A which is reported without decision on the bill as amended, the answer, and the statement of agreed facts. The plaintiffs are August A. Busch & Company of Massachusetts, Inc., and Zurich General Accident and Liability Insurance Company, Ltd., the latter being added on motion. The defendants are Liberty Mutual Insurance Company and U-Dryvit Auto Rental Company, Inc. Reference to the parties is hereinafter made by abbreviated designation. The issues sought to be determined are the respective liabilities of the two insurance companies on liability insurance policies in the circumstances to be described.

On July 5, 1949, Busch, a corporation engaged in the manufacture and sale of bottled beer and ale, was the lessee of a motor truck owned by U-Dryvit. Busch had a so called 'Comprehensive General and Automobile Policy' issued by Zurich insuring it against liability to pay damages 'because of bodily injury * * * sustained by any person or persons and caused by accident.' The limit of liability for bodily injury was stated to be $100,000 for each person, with the qualifying provision that with respect to motor vehicles leased by Busch from U-Dryvit the 'insurance afforded shall operate only as excess insurance over and above the amount of $10,000 for bodily injury to each person and subject to that limit for each person.' U-Dryvit had a motor vehicle liability policy issued by Liberty which was applicable to the said leased truck while used by Busch. This policy purported to insure the lessee against liability to 'pay * * * damages to others for bodily injury * * * caused by the ownership, operation, maintenance, control or use of the motor vehicle.' It was declared in the policy that 'use of the motor vehicle for the purposes stated includes the loading and unloading thereof.' This policy stated that the limit of liability for bodily injury was $10,000 for each person and provided that 'the company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability * * * bears to the total applicable limit of liability of all valid and collectible insurance against such loss.'

On the date above mentioned Busch was using the truck to deliver cartons of bottled beer to a restaurant on Essex Street in Boston. 'Busch employees stopped this truck at Essex Street, a public way in Boston, at the corner of Hersey Place, in front of Ort's Restaurant and Grill, Inc., * * * which fronted on Essex Street. The driver and helper then removed fifty cartons of bottled beer from the truck and stacked them on the Essex Street sidewalk. Thereafter they placed these cartons--five at a time--upon a hand-operated two-wheeled roller or truck and pushed the truck fifty-five to sixty feet down the alley called Hersey Place, which ran from Essex Street along one side of Ort's. They then removed the cartons from this roller and stacked them on the ground in Hersey Place, by a side door leading into Ort's restaurant. A board or chute or skid was then arranged to slide the cartons from the alley, through an opened trap door inside the said door and in the floor to Ort's cellar. The cartons were then moved down this chute to the cellar floor and placed on the floor. Thereafter the Busch employees went to the cellar, and the cartons were being put into an ice chest, with the assistance of two employees of another brewer who were preparing to deliver ten barrels of beer through this same side door and trap door. While the cartons were being put into the ice chest, a prospective customer of the restaurant, John Smith, undertook to enter Ort's through this alley door, fell through the open trap door to the cellar and was injured. John Smith sued Ort's and Busch as joint tortfeasors for negligently causing personal injuries and recovered judgment against both in the sum of $26,815.64 as damages, and $217.55 as costs. Of this sum, Ort's or Ort's liability insurer paid approximately $13,376.69 and Zurich on behalf of Busch under a loan receipt paid approximately the same amount.'

The question for decision is whether Liberty is obligated to pay Busch $10,000 on account of the damages paid to Smith and $217.55 on account of costs, with interest thereon.

The case presents for the first time in this Commonwealth the question of the extent of coverage provided by a clause in a motor vehicle liability policy that the 'use' of a motor vehicle shall include its loading and unloading. In other jurisdictions judicial opinion has differed (see cases collected in ...