Brown Mfg. Co. v. Crouse

• Decision Date: 05 April 1960
• Docket Number: No. 49918,49918
• Citation: 251 Iowa 594,102 N.W.2d 154
• Parties: BROWN MANUFACTURING COMPANY, Inc., a Corporation, Plaintiff and Cross-Appellant, v. Paul CROUSE, d/b/a Crouse Cartage Co., Defendant-Appellee. Paul CROUSE, d/b/a Crouse Cartage Co., Cross-Petitioner, Appellee, v. MARYLAND CASUALTY COMPANY, a Corporation, Defendant-Appellant.
• Court: Iowa Supreme Court

Page 154

102 N.W.2d 154

251 Iowa 594

BROWN MANUFACTURING COMPANY, Inc., a Corporation, Plaintiff and Cross-Appellant, v. Paul CROUSE, d/b/a Crouse Cartage Co., Defendant-Appellee.

Paul CROUSE, d/b/a Crouse Cartage Co., Cross-Petitioner, Appellee, v. MARYLAND CASUALTY COMPANY, a Corporation, Defendant-Appellant.

No. 49918.

Supreme Court of Iowa.

April 5, 1960.

Michael H. Murray, Logan, for plaintiff cross-appellant.

Edward S. White, Carroll, for defendant-appellee.

Irish & Haughey, Des Moines, for defendant-appellant.

THORNTON, Justice.

Two A-4 Niagara Punch Presses owned by plaintiff corporation were damaged in the course of transportation on a tractor-trailer unit. The damage occurred when the trailer passed under the railroad viaduct over U. S. Highway No. 30 south of Missouri Valley. Defendant received the presses from the initial carrier, Watson Brothers Transportation, at Omaha for shipment to plaintiff at Woodbine. Plaintiff purchased the presses in Chicago and Watson Brothers transported them to Omaha. Defendant interchanged the trailer used with Watson Brothers because of the nature of the merchandise. The presses weigh 18,000 pounds and it is necessary to load and unload them with cranes. Certain gears were knocked off of the presses damaging them to such an extent the cost of repair would exceed their value.

The plaintiff, owner of the punch presses, will be referred to as plaintiff cross-appellant; defendant as insured appellee; and the defendant on the cross petition will be referred to as insurer appellant.

Plaintiff cross-appellant brought this action to recover the value of the presses and transportation charges against insured appellee and insured appellee cross-petitioned against his insurance carrier, Maryland Casualty Company, the insurer appellant, for his loss on a policy issued him by the casualty company. The case was tried to the court without a jury. The trial court entered judgment against the insured appellee in the sum of $6,715.20 plus interest and costs, and insured appellee was awarded judgment in the same amount against the insurer appellant. In addition the court held insured appellee was entitled to recover attorney fees and other expenses incurred by him in defense of this action as against the insurer appellant, and reserved jurisdiction to determine the amount of the fees and expenses at a subsequent hearing in accordance with a stipulation of the parties. In his findings of act and conclusions of law the trial court found the value of the presses was $6,250 and the transportation and handling charges were $465.20.

The insurer appellant contends the loss is not within the coverage of the policy; it is not obligated under the policy to defend the original action or to pay the cost of defense incurred by insured appellee; and transportation charges and handling costs are not proper items of damage under the policy. Plaintiff cross-appellant appeals because the judgment is too small contending he should have been awarded $7,465.20, the amount of his prayer, with interest and costs. Insured appellee does not appeal.

The policy under consideration is known as an 'Inland Marine Floater Policy', is motor truck cargo insurance, and insures the liability of the insured appellee as a carrier for direct loss or damage for certain specified perils on shipment of general freight while loaded for shipment and in transit in or on vehicles owned, leased, or operated by insured appellee.

I. The first contention of the insurer appellant is based on the following provision of the policy:

'This policy insures the assured's liability for loss of or damage to property insured hereunder directly caused by: * * * (b) Collision, i. e., accidental collision of the vehicle with any other vehicle or object.'

It contends there is no evidence to support the finding of the trial court that insured appellee's trailer did collide with the railroad viaduct, claiming that the only collision was between the load itself and the viaduct.

In determining this contention, the findings of fact of the trial court sitting without a jury in a law action are binding upon us if there is substantial support in the evidence. And we consider the evidence in the light most favorable to the judgment of the trial court. In re Dashiell's Estate, Iowa, 94 N.W.2d 111; Donahoe v. Casson's Market, Inc., 248 Iowa 1106, 84 N.W.2d 29, and citations; and Curtis v. Wilkins, 248 Iowa 1314, 85 N.W.2d 546, 548.

The trial court found as a fact the tarpaulin roof of the trailer was a part of the vehicle and a collision with the roof was a collision with the vehicle. There is ample evidence to support this finding. The trailer is known as a 'three quarter open top.' It is especially designed for hauling heavy machinery and is so constructed that cranes may be used for loading and unloading. The front one-quarter of this roof is of solid construction. The roof of the rear three-quarters of the trailer consists of a canvas tarpaulin affixed to the rear of the solid roof. The tarpaulin is affixed to the solid roof by first securing the canvas to a wooden strip, about one by one, and the tarpaulin is then secured to the rear of the solid roof by placing a metal strip over the wooden strip and fastening the tarpaulin, wooden strip and metal strip to the solid roof with metal screws. This is removable with considerable work and is not removed in the ordinary course of use. The tarpaulin is supported by metal stays that fit into sockets on the sides of the trailer and is secured on the sides and rear by ropes tied to a pipe that runs clear around the trailer. Trailers of this type are purchased from the factory so constructed. The bed of the trailer is 35 feet long and eight feet wide. It is 48 inches above the roadbed and from the bed of the trailer to the peak of the metal stays it is 8' 9"', making an overall height of 12' 9"' when the trailer is empty. Insured appellee, Paul Crouse, testified he had been in the trucking business since 1929 and he could determine he height of equipment he was using with various loads, and that the height of the trailer here in question when loaded with 18,000 pounds, the weight of the presses, was in his opinion 12' 6 '. The height of the punch presses was 8' 8"' or one inch below the highest point of the metal stays. The presses were loaded on the left side of the trailer, the side of the trailer nearest the center of the road, behind the solid roof, covered by the tarpaulin over the stays and bolted to the floor of the trailer. As so loaded it is a fair inference the highest point of the presses was touching or just below the canvas top. It was stipulated the presses were damaged when the trailer passed under the railroad viaduct south of Missouri Valley. The lowest point of the viaduct above the roadbed as shown by Exhibit 6 is 12' 8"' and the highest point 12' 11 1/2"'. The difference in height is caused by the variation in the roadbed. The evidence further shows the tarpaulin was torn above the presses in such a manner as to leave a jagged tear. As described, a proper inference is the tear was caused when it came in contact with the viaduct and was crushed between the machinery and viaduct. The oral evidence and Exhibits 3 and 4 show the metal strip securing the tarpaulin to the solid part of the roof was torn loose and pulled back in the center of the trailer and completely loose on the right-hand side. The oral evidence also shows stays farther back on the trailer were bent and pulled loose from the sockets on the side of the trailer. The insurer appellant offered no evidence.

It seems clear from the foregoing the tarpaulin supported by stays and attached to the solid roof constitute the roof for the rear three-quarters of the trailer and is a part of the vehicle. And it is equally clear the tarpaulin and stays as well as the presses collided with the viaduct. It is certainly a proper inference the presses would not have collided with the viaduct if the tarpaulin roof did not, and that such collision of the roof is the direct cause of the loss. For this court to hold otherwise would require a holding, as a matter of law, the tarpaulin roof so attached does not constitute a part of the vehicle. Under the circumstances presented we cannot so hold.

We find no support in the evidence for the statement in the insurer appellant's brief and argument that this was a collision between a portion of the cargo as it extended over and above the top of the vehicle and some other object.

We have not been cited to, nor have we found, a case with circumstances identical to the one before us. Our holding here finds support in Edgerton & Sons, Inc. v. Minneapolis Fire & Marine Ins. Co., 142 Conn. 669, 116 A.2d 514, 516-517. Also, though a contrary result was reached, the discussion in Jenrette Transport Co. v. Atlantic Fire Ins. Co., 236 N.C. 534, 73 S.E.2d 481, 485-486, supports our holding. Other authorities cited by insured appellee: C. & J. Commercial Driveway v. Fidelity & Guaranty Fire Corp., 258 Mich. 624, 242 N.W. 789; Gould Morris Electric Co. v. Atlantic Fire Ins. Co., 229 N.C. 518, 50 S.E.2d 295; Garford Trucking, Inc. v. Alliance Ins. Co. of Philadelphia, 2 Cir., 1952, 195 F.2d 381; Bucks County Construction Co. v. Alliance Ins. Co. of Philadelphia, 162 Pa. Super. 153, 56 A.2d 338; and Jorgenson v. Girard Fire & Marine Ins. Co., 229 Minn. 48, 38 N.W.2d 209; turn on different fact situations and policy provisions and a discussion of them would serve no...