Carr Packing Co. v. Frank
| Decision Date | 01 February 1966 |
| Citation | 266 N.Y.S.2d 633,49 Misc.2d 74 |
| Parties | CARR PACKING CO., Inc., Plaintiff, v. John FRANK and State Farm Mutual Automobile Insurance Company, Defendants. |
| Court | New York Supreme Court |
Donohue, Bohl & Clayton, Albany, Paul F. Donohue, Albany, of counsel, for Carr Packing Co., Inc.
James T. Viger, Troy, Robert J. Armstrong, Jr., Troy, of counsel, for State Farm Mut. Automobile Ins. Co.
Garry & Cahill, Albany, for John Frank.
John Frank commenced an action against the plaintiff herein for personal injuries sustained in a fall. In his complaint he alleges that on May 9, 1960, while he was employed by the Boland and De Gennaro Meat Company, Inc. and was unloading meat at the docks of the plaintiff's slaughter house, he was caused to fall as the result of plaintiff's negligence in controlling and maintaining the aforesaid unloading docks.
Thereafter, this plaintiff, Carr Packing Co., Inc. (defendant in Frank's negligence action) commenced an action for a declaratory judgment wherein it prays that it be adjudicated an 'insured' within the meaning of the liability insurance policy issued by the defendant, State Farm, to Boland and De Gennaro, the employers of Frank. The general denials of State Farm are generally vitiated by the stipulations of fact and agreement entered into between the parties hereto and presented to the Court for its consideration in the disposition of the case.
Paragraphs four through seven of the stipulated facts establish that plaintiff exercised control over the loading dock; that said dock was being used in the unloading process; that the alleged accident occurred during the course of loading or unloading meat from the dock onto a truck owned by Boland and De Gennaro and insured by State Farm. Paragraphs eight through ten establish that the incident happened while Frank was acting in the scope and course of his employment and was using a truck owned by his employer and with his employers' consent.
The question to be resolved is whether these facts constitute use of the insured truck by the plaintiff herein so that it reasonably follows that plaintiff was engaged in the 'loading and unloading' process. An affirmative answer would result in the requested relief because the terms of the State Farm policy provide for the carrier to pay all damages '* * * because of personal injury * * * caused by accident arising out of the ownership, maintenance or use, including loading or unloading * * *'. Coverages A and B(1) of submitted policy.
The case of Wagman v. American Fidelity and Casualty Co., 304 N.Y. 490, 109 N.E.2d 592, marks the departure of the decisional law of this State from the conservative viewpoint requiring the act complained of to be so interrelated with the use of the vehicle that only such immediate steps as directly affect loading or unloading the vehicle would constitute 'use'. This case adopted the more liberal viewpoint that "loading and unloading' embrace, not only the immediate transference of the goods to or from the vehicle, but the 'complete operation' of transporting the goods between the vehicle and the place from or to which they are being delivered'.
The law of the Wagman case has been consistently followed as evidenced by the holding in Sfinas v. 1400 Broad Street Realty Corp., 22 A.D.2d 754, 253 N.Y.S.2d 677, wherein an insured plaintiff was injured while unloading meat from a pushcart supplied by a defendant into a vehicle owned by plaintiff. Reversing the lower Court the Appellate Division held that the plaintiff's insurer must provide a defense for the defendant on the ground that the defendant was assisting the plaintiff in the loading and unloading process. A similar holding was reached in Chenango Gas Co. v. Allstate Insurance Co., 39 Misc.2d 177, 240 N.Y.S.2d 194, affd. 19 A.D.2d 928, 245 N.Y.S.2d 330.
It is interesting to note that in the Wagman case the one injured was...
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