Franklin Co-Op. C. Ass'n v. Employers' L. Assur. Corp.

• Court: Minnesota Supreme Court
• Writing for the Court: Loring
• Citation: Franklin Co-Op. C. Ass'n v. Employers' L. Assur. Corp., 273 N.W. 809, 200 Minn. 230 (Minn. 1937)
• Decision Date: 11 June 1937
• Docket Number: No. 31138.,31138.
• Parties: FRANKLIN CO-OP. CREAMERY ASS'N v. EMPLOYERS' LIABILITY ASSUR. CORPORATION et al.

273 N.W. 809

200 Minn. 230

FRANKLIN CO-OP. CREAMERY ASS'N v. EMPLOYERS' LIABILITY ASSUR. CORPORATION et al.

No. 31138.

Supreme Court of Minnesota.

June 11, 1937.

Appeal from District Court, Hennepin County; W. W. Bardwell, Judge.

Action under the Uniform Declaratory Judgment Act by the Franklin Co-operative Creamery Association against the Employers' Liability Assurance Corporation and others. From an order denying its motion for a new trial after judgment in favor of named defendant, plaintiff appeals.

Affirmed.

Leonard, Street & Deinard, of Minneapolis, for appellant.

Stinchfield, Mackall, Crounse, McNally & Moore, of Minneapolis, for respondent.

LORING, Justice.

This was an action under the uniform declaratory judgments act (sections 9455-1 to 9455-16, Mason's Minn.St.1927, 1936 Supp.), praying for a declaration of the plaintiff's rights under a "teams public and property damage liability policy" issued to it by the Employers' Liability Assurance Corporation, of London, the respondent herein.

The principal question presented is whether the coverage of the policy extended to the situation involved in Horgen v. Franklin Co-operative Creamery Ass'n, 195 Minn. 159, 262 N.W. 149. By the terms of the policy respondent, hereinafter referred to as the insurance company, agreed to investigate, settle, and defend against claims and suits and to pay judgments rendered against the creamery association as a result of liability for "bodily injuries, including death at any time resulting therefrom, accidentally sustained by any person or persons other than employees of the assured (1) caused by, and/or owing to the ownership, the maintenance, the use, and/or operation of, all horses, draft animals, and/or vehicles, used in connection with the business operations of the assured described in the declarations, and (2) caused by or resulting from the loading and/or unloading of the said vehicles." (Italics supplied.)

The creamery association is engaged in dealing in dairy products and amongst other things distributes milk at retail. For that purpose it uses some horse-drawn vehicles and the defendant Rundquist was one of its drivers of such a vehicle. His route included the Northwest Terminal Warehouse buildings in Minneapolis where he sold milk by the bottle to workmen in the various terminal buildings. On the morning of October 6, 1931, he drove his milk wagon to the Northwest Terminal and there distributed milk to various customers in a number of the buildings and finally drove to building No. 1, where he had customers among the workmen of the Hawkinson Tire Company on the third floor. He stopped his wagon in the street in front of the building and put the hitching weight down, filled his containers with milk bottles, and entered the building at a point about 20 feet from his wagon. After entering he walked about 30 feet to a freight elevator, set down his container, and then, for the purpose of using the elevator, pulled on the ropes or cables which controlled its operation. The elevator was operated by an electric motor which he set in motion by pulling the cable, and in so doing he injured Horgen, who was an employee of the Northwest Terminal Company. Liability established, Horgen v. Franklin Co-operative Creamery Ass'n, 195 Minn. 159, 262 N.W. 149. Rundquist was attempting to use the freight elevator for his own convenience instead of walking up two flights of stairs to the third floor. The trial court held that the respondent's policy of insurance did not cover the Horgen accident and the plaintiff comes here on appeal from an order denying its motion for a new trial.

1. Was the process of unloading complete? We are of the opinion that the trial court rightly held that it was. The process of distributing bottled milk at retail is familiar to us all and we take judicial notice of it. Rundquist had started on his rounds to peddle milk to his various customers. After he left his wagon carrying his containers, the process of retail distribution commenced. If he had served customers on the first floor prior to his attempt to take the elevator, it could hardly be contended that he was still engaged in unloading the vehicle. Nor could it be so contended if some accident had happened while he was passing from customer to customer. We see no difference in principle or in the application of the policy between such situations and the one at bar. Many cases are cited by appellant but are distinguishable on the facts. Necessarily the unloading of a great variety of merchandise involves various situations resulting in various holdings as to when the process of unloading terminates. Within limits each case must stand on its own facts. This one stands outside the terms of the unloading clause of the policy. And it stands even further without the "operation, maintenance and use" clause. The operation of the freight elevator wholly within the building and remote from the wagon, solely for the driver's convenience in ascending to the third floor, had nothing whatever, in our opinion, to do with "use" of the teams or vehicles.

2. Appellant contends that it was error for the trial court to exclude evidence with regard to the significance of what it claims was, by trade usage and custom, given to the word "un...