Black Hills Kennel Club, Inc. v. Fireman's Fund Indem. Co.

• Decision Date: 13 January 1959
• Docket Number: No. 9694,9694
• Parties: BLACK HILLS KENNEL CLUB, INC., Plaintiff and Appellant, v. FIREMAN'S FUND INDEMNITY COMPANY, Defendant and Respondent.
• Court: South Dakota Supreme Court

Page 90

94 N.W.2d 90

77 S.D. 503

BLACK HILLS KENNEL CLUB, INC., Plaintiff and Appellant, v. FIREMAN'S FUND INDEMNITY COMPANY, Defendant and Respondent.

No. 9694.

Supreme Court of South Dakota.

Jan. 13, 1959.

Gunderson, Farrar & Carrell, Rapid City, for plaintiff-appellant.

Hanley, Costello & Porter, Rapid City, for defendant-respondent.

ROBERTS, Judge.

This is an action brought by the plaintiff against the Fireman's Fund Indemnity Company for the recovery under an insurance policy issued by the defendant to the plaintiff of an amount necessarily expended by plaintiff in the defense and settlement of an action for damages arising out of personal injuries allegedly within the coverage of the policy. The court held that the accident in question was not within the coverage of the policy and rendered judgment dismissing the action. Plaintiff appeals.

Plaintiff was the owner and operator of a racing track near Rapid City. James Thomas Thompson, six years of age, was injured when in attendance at the race track. The facts in connection with the accident as found by the court are as follows:

'Plaintiff determined to hold a so called 'mutt day' on Sunday, August 13, 1951, as a publicity and public relations measure. In furtherance of this project, the public was invited to attend and enter family pets in the races to be held on that day. Trained racing dogs or dogs with racing experience were not to be allowed to run in the races. Such an event had never, until that time, been held by Plaintiff, and Defendant was never informed prior to the occurrence of the 'mutt day' event that such an event was planned or was to be held. * * *

'When the races were first commenced, the owners of the dogs remained off the track for the first five or six attempted races. The dogs, being family pets, and not trained racing dogs, in most instances did not follow or show any interest in the rabbit lure provided by Plaintiff, and it was not possible to satisfactorily complete those early races. * * *

'The owners of the dogs, which were to be involved in the races, were then invited and requested by Plaintiff to come out on to the track for the purpose of urging and encouraging their dogs to run and for the further purpose of assisting in handling and catching their own dogs; and, said owners were instructed and requested by Plaintiff through its officers, agents and employees in connection with urging and encouraging their dogs to run and handling and catching their dogs as hereinafter set forth. * * *

'James Thomas Thompson, at the invitation of Plaintiff, at the time of his injury, was present on the race track. He had led the dog, which was owned by him and which was entered in the pertinent race, to the starting line of the race, left him there and returned to a place at or near the finish line. In doing so, he was following the procedure suggested and approved by Plaintiff which had been established in prior races, the purpose being to allow the individual dog to watch where his master went and to see his master at the finish line, thus lending encouragement for the dog to run in the race to the place his master was awaiting at or near the finish line of the race. * * *

'James Thomas Thompson, while present on the track for the purposes hereinabove set forth, did urge and give audible encouragement to his dog during the race then being run and was injured while so present and engaged by being struck by the electrically impelled lure which was traveling along the race course, while he, James Thomas Thompson was standing at or near the finish line of the race which was then taking place.'

The defense of an action commenced by the mother of the injured boy against the insured owner to recover damages for his personal injuries arising out of the operation of the race track was duly tendered to defendant insurance company and refused. Plaintiff in the instant action sought to recover $6,500 paid in settlement of the Thompson action and amounts expended for attorneys' fees. The insuring agreements of the policy include the following coverage: 'To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury * * * sustained by any person, caused by accident and arising out of' the ownership and operation of the race track. The following is set forth in the policy under the heading of 'Definition of Hazards': 'As respects the insurance afforded by the other terms of this policy the company shall: (a) defend any suit against the insured alleging such injury * * * and seeking damages on account thereof, even if such suit is groundless, false or fraudulent; but the company may make such investigation, negotiation and settlement of any claim or suit as it deems expedient'. The policy contains the following endorsement: 'In addition to the exclusions in the policy it is agreed that in respect to the risk described in the schedule hereof the company shall not be liable because of bodily injury * * * sustained by any person while practicing for or participating in any contest.' Defendant insurance company contends that the injured boy was so participating at the time of his injuries and hence there was no coverage under the policy and no obligation to...