Ermis v. Federal Windows Mfg. Co.

• Decision Date: 26 June 1959
• Parties: Sylvester ERMIS, Plaintiff, v. FEDERAL WINDOWS MFG. CO., Inc., a Wisconsin corporation, Appellant, American Automobile Ins. Co., Impleaded Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 485

97 N.W.2d 485

7 Wis.2d 549

Sylvester ERMIS, Plaintiff, v. FEDERAL WINDOWS MFG. CO., Inc., a Wisconsin corporation, Appellant, American Automobile Ins. Co., Impleaded Defendant-Respondent.

Supreme Court of Wisconsin.

June 26, 1959.

Rehearing Denied Oct. 6, 1959.

Schlotthauer & Jenswold, Madison, for appellants.

Arnold, Philipp & Murray, Milwaukee, for respondent.

BROADFOOT, Justice.

At the opening of the hearing on the controversy between the insurance companies the trial court made the following statement:

'If I understand correctly, at a pretrial conference the question was raised here as to a possible coverage question, and there is a factual situation to determine as to whether or not the coverage of American Automobile Insurance Company applies.'

In its memorandum decision the trial court stated that in his view the issues were as stated above. The two insurance companies seem to disagree as to the issues that were to be resolved by the trial court at the hearing. Bituminous contends that the issues were whether there was coverage under either or both of the policies involved, and which insurance company has the obligation to defend the suit. American, on the other hand, contends that the issue was the question of ultimate liability and that Bituminous had the burden of proving liability.

Since no record of what occurred at the pretrial conference is incorporated in the bill of exceptions we cannot state with certainty just what the issues were. We must conclude however, from the record that the issue related to coverage and not to ultimate liability. From the small amount of testimony introduced at the hearing there was a prima facie showing that the plaintiff was injured during the process of loading the truck. The automobile policy issued by American contained the following provision:

'1. Coverages

'A--Bodily Injury Liability--Automobile. To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, and arising out of the ownership, maintenance or use of any automobile, including the loading and unloading thereof.'

The words 'including the loading and unloading thereof' are an extension of the use clause and cover operations or acts in which the movement of the truck itself does not play a part. To make American liable there will have to be proof upon the trial that the plaintiff was injured during a loading operation.

Our attention is called to two Wisconsin cases dealing with injuries to third persons during alleged unloading operations. Those cases are Stammer v. Kitzmiller, 226 Wis. 348, 276 N.W. 629, and Hardware Mutual Casualty Company v. St. Paul-Mercury Indemnity Co., 264 Wis. 230, 58 N.W.2d 646. These will be of little help in the trial of the case as they deal with the question of when an unloading process has been completed.

Several cases from other jurisdictions have been cited. The case most comparable on the facts is Bituminous Cas. Corp. v. Travelers Ins. Co., D.C., 122 F.Supp. 197. This was a decision by a United States district court in Minnesota and was determined under Minnesota law. In that case one Williams was a trucker engaged in hauling agricultural limestone from a quarry to various farmers. While his truck was being loaded at the quarry he was injured by a power shovel that was being operated by an employee of the quarry...