Bituminous Cas. Corp. v. American Fidelity & Cas. Co.
| Decision Date | 30 April 1959 |
| Docket Number | Gen. No. 47409 |
| Parties | BITUMINOUS CASUALTY CORPORATION, a corporation, and Midland Electric Coal Corporation, a corporation, Plaintiffs-Appellants, v. AMERICAN FIDELITY AND CASUALTY COMPANY, Inc., a corporation, and Rock Island Motor Transit Co., a corporation, Defendants-Appellees, Julius Fassl, Albert Hughes, Kenneth Scott, Donald Stocks and W. H. Duryea, Defendants-Appellants. |
| Court | United States Appellate Court of Illinois |
Andrew J. Farrell, Chicago, Thomas Weithers, Chicago, of counsel, for plaintiffs-appellants.
Scott, Tyrrell & Collias, Chicago, Joseph T. Tyrrell, Chicago, of counsel, for defendants-appellants.
Pretzel Stouffer & Nolan, Chicago, Charles D. Snewind, Chicago, of counsel, for defendants-appellees.
In an amended complaint the Bituminous Casualty Corporation and the Midland Electric Coal Corporation sought a declaratory judgment against the American Fidelity and Casualty Company, Inc., Rock Island Motor Transit Co., Julius Fassl, Albert Hughes, Kenneth Scott, Donald Stocks and W. H. Duryea. While a diesel engine was being unloaded from the truck of Rock Island on the premises of Midland it fell and caused injuries to Julius Fassl. He sued Midland, Rock Island, Hughes, Scott, Stocks and Duryea to recover damages for the injuries he suffered. American was requested to take over the defense of Midland and to pay any judgment that might be entered to the limit of the insurance coverage. American refused to take over the defense and denied liability on the ground that its policy did not cover the liability of Midland. The court found in favor of American and decreed that American is not obligated under its contract of insurance to provide a defense to Midland or to the individual defendants in the action filed by Fassl. The court further decreed that American is not bound under its policy to satisfy any judgment that might be rendered against Midland or the individual defendants within the limits of its policy. Bituminous, Midland and the individual defendants appeal. The corporate appellants and the individual appellants filed separate briefs. The appellees assert that the appeal of Bituminous is limited by its notice of appeal. We are satisfied that the appeal is from the entire judgment and permits the appellants to urge all the points made.
The first point presented is that the court erred in holding that American is not obligated under its contract of insurance to provide a defense to Midland and the individual defendants in the suit filed by Fassl, and in holding that it is not obligated under its contract of insurance to satisfy a judgment rendered against Midland and the individual defendants within the limits of its policy. Appellees say that the court properly held that American was not liable under its policy of insurance issued to Rock Island because the accident is not covered under the unloading clause of the policy and for the additional reason that the accident was excluded under the insuring agreement in that Midland was operating an automobile repair shop. The policy provides that the use 'of the automobile for the purposes stated includes the loading and unloading thereof' and that 'the unqualified word 'insured' wherever used in coverages A and B and in other parts of the policy, when applicable to such coverages, includes the named insured and except where specifically stated to the contrary also includes any person while using the automobile, and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is with the permission of the named insured.'
On July 18, 1952 Rock Island operated a truck-trailer and in the course of its business transported a certain diesel engine from the Cummins Diesel Sales Corporation, Chicago, to the premises of Midland at Sheffield, Illinois. Rock Island is a common carrier engaged in the transportation of merchandise over routes within the United States by motor vehicles. The truck-trailer was driven in and upon the premises of Midland. Midland was primarily a mining company operating an open pit or strip mine in Bureau County. The truck-trailer was operated by Rock Island's driver, Robert E. Behler. The accident occurred at 10:00 a. m. at the Midland property, five miles east of the Village of Mineral. Julius Fassl, age 27, an employee of Cummins, was injured. The diesel engine was being unloaded out of the trailer when it fell on Fassl, who was assisting in the unloading. The engine was being unloaded by Hughes, Scott, Stocks, and Duryea, employees of Midland. At the time the engine fell it was being moved by a hoist owned and operated by Midland. A hitch was used to unload the engine from the truck. It was a canopy truck and it was difficult to get the chain directly over it. When the men tightened on the hoist the engine slid toward the back of the truck. It was then hanging from the hoist, completely clear of the truck. It then dropped. According to Fassl, he arrived at the scene about 9:00 a. m. and was standing about 25 feet from where the engine was being unloaded. He first noticed the engine when it was in position on the end of the truck. He walked over 15 to 20 feet and was about 5 inches from the engine when it fell as it was being unloaded.
The truck was not moving at the time of the accident. The driver of the truck was not an actor in the removal of the diesel engine from the truck. The truck carried no part of the hoist by which the diesel engine was moved from the truck. The hoist was on the premises and the property of Midland and was being operated solely by the latter's employees. The negligent act involved was the failure of Midland's hoist or the negligence of its employees in operating the hoist. The hoist was an instrumentality customarily used for the removal of heavy objects such as diesel engines from trucks delivering merchandise to Midland. There was no transportation agreement by Midland with Rock Island. The contract of carriage was by Cummins with Rock Island. The diesel engine was being removed from the truck with the assistance of a hoist when it fell and struck Fassl. Appellants rely strongly on Coulter v. American Employers' Ins. Co., 333 Ill.App. 631, 78 N.E.2d 131; Wagman v. American Fidelity & Casualty Co., Inc., 304 N.Y. 490, 109 N.E.2d 592; American Auto. Ins. Co. v. American Fidelity & Casualty Co., 106 Cal.App.2d 630, 235 P.2d 645; Krasilovsky Bros. Trucking Corp. v. Maryland Casualty Co., City Ct., 54 N.Y.S.2d 60; and United States Fidelity & Guaranty Co. v. Church, D.C., 107 F.Supp. 683. Appellees say that none of the cases cited by appellants support their position.
The trial court was under the impression that the loading and unloading provision does not come...
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