Hamilton Trucking Service v. Automobile Ins. Co. of Hartford, Conn.
| Decision Date | 23 November 1951 |
| Docket Number | No. 31787,31787 |
| Citation | 39 Wn.2d 688,237 P.2d 781 |
| Parties | HAMILTON TRUCKING SERVICE, Inc. v. AUTOMOBILE INS. CO. OF HARTFORD, CONN. |
| Court | Washington Supreme Court |
Elliott & Lee, Frank Hunter, Seattle, for appellant.
Lenihan & Ivers, Seattle, for respondent.
This action was brought by respondent to recover a loss sustained in the carriage of machinery, which it was claimed was covered by an insurance policy issued by appellant.
On March 31, 1948, respondent was transporting a gang saw consigned to Thompson Falls, Montana. The saw had been loaded on the flat bed of a truck. The height of the load from the ground level to the top of the saw was 12 feet and 3 inches. The driver of the truck attempted to go through an underpass in Spokane. The clearance was less than the height of the truck and its load. The saw was damaged by coming in contact with the framework of the underpass. The respondent carrier paid the owner of the saw for the damage.
At the trial of the action the parties entered into a stipulation as to some of the material facts, and also agreed that a rider added to the insurance policy, referred to as endorsement No. 1, had no application to the facts of the case. Later, by order of the court, the parties were relieved of the effect of the latter part of the stipulation. In our review of the judgment we shall consider the endorsement as a part of the policy.
The trial judge was of the opinion that when the parties made their contract of insurance, taking into consideration both the policy and the endorsement, they had in contemplation indemnity for damage to the cargo carried on the truck if such cargo came in contact with some outside object.
The material parts of the insurance policy and endorsement No. 1 are as follows:
'This policy covers the logal liability of the Assured as a carrier for direct loss or damage from perils hereinafter specified to shipments of lawful goods consisting of Bldg. Material and Bldg. Machinery, in or upon the following described motor truck * * * in the service of the Assured, * * *
'This Policy Applies to the Following Perils
'* * *
'(c) Accidental collision of the motor truck or trailer with any other automobile, vehicle or object; * * *'
'(a) In consideration of the rate charged for the issuance of the policy to which this endorsement is attached, it is hereby understood and agreed that the policy is extended to cover the legal liability of the Assured as a carrier for direct loss or damage to shipments of lawful goods (hereinbefore described) from collision of the contents on Assured's vehicle with any other vehicle or object due to overwidth or overheight of load as may be defined by law, it being warranted the Assured will operate under special statutory requirements of the State Laws.'
The question to be decided is whether the collision between a part of the load on the truck with some other object while in the process of transportation was within the risks covered by the policy.
The policy has a very limited risk coverage. By its plain terms the risks assumed are accidental collision between the truck upon which the property is being carried and some other object and a collision between the property covered and some other object due to the width or height of the load being in excess of that limited by law. Rem.Rev.Stat., Vol. 7A, § 6360-48, fixes the maximum height of a load at 12 feet and 6 inches above the level surface upon which the vehicle stands. The load on the respondent's truck was 12 feet and 3 inches in height. Endorsement No. 1, being limited to overheight loads, did not cover the load on respondent's truck.
The appellant contends that the language used by subdivision (c) quoted above is not ambiguous; that it expresses the intention of the parties; that no rules of interpretation or construction need be applied, and that the risk coverage is limited to damage to property transported by reason of the truck on which it is loaded colliding with some other object. In support of its position appellant cites and relies upon Mendelsohn v....
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