Independence Indemnity Co. v. WJ Jones & Son

• Decision Date: 20 March 1933
• Docket Number: No. 6958.,6958.
• Citation: 64 F.2d 312
• Parties: INDEPENDENCE INDEMNITY CO. v. W. J. JONES & SON, Inc.
• Court: U.S. Court of Appeals — Ninth Circuit

64 F.2d 312 (1933)

INDEPENDENCE INDEMNITY CO. v. W. J. JONES & SON, Inc.

No. 6958.

Circuit Court of Appeals, Ninth Circuit.

March 20, 1933.

Wilbur, Beckett, Howell & Oppenheimer, R. W. Wilbur, H. B. Beckett, F. C. Howell, E. K. Oppenheimer, and Francis E. Marsh, all of Portland, Or., for appellant.

E. L. McDougal and Veazie & Veazie, all of Portland, Or., for appellee.

Before WILBUR, SAWTELLE, and MACK, Circuit Judges.

WILBUR, Circuit Judge.

This suit was brought by appellee to recover on a contractor's policy of public liability insurance issued by the appellant on August 26, 1926, to Clayton R. Jones and/or W. J. Jones & Son, later changed to cover "Clayton R. Jones and/or W. J. Jones & Son, Inc."

The policy which indemnifies the appellee, the insured, against liability for injuries suffered by third persons by reason of operations of its employees therein described is printed in the footnote,¹ with typewritten portions in italics. The principal question involved is as to whether or not the policy covered the liability for the injuries involved in this action. These injuries resulted from the collision of a motorcycle whereon one W. Roy Melbo and Lloyd E. Hawn were riding, with a "jitney" power unit operated and used by employees of the appellee in its stevedoring business for the transportation of cargo from the ship's side to the place of storage. Separate suits were brought by Melbo and Hawn against the appellee to recover for the personal injuries received by them as result of the collision. Due notice of the pendency of such actions was given to the appellant, insurance company, which refused to defend. The appellee defended the actions, but judgments were rendered against it in favor of Lloyd E. Hawn for $7,659, which was settled by the appellee for $7,250, and by W. Roy Melbo for $5,408.75 and interest, which was settled by the appellee on June 21, 1928, for $5,459.24. In addition thereto, the appellee prays judgment for attorneys' fees and costs in the two actions aggregating $2,506.10, and for $2,500 additional as attorneys' fees in prosecuting this action. Judgment was rendered in favor of appellee as prayed for.

The principal question involved in this appeal is the effect of the "condition" in the policy to the effect that the policy "does not cover * * * any liability in respect to injuries caused in whole or in part * * * by any locomotive, engine, train, motor, car, automobile, or other self-propelled vehicle." (Cond. 3, sub. c-iv, of the policy.)

In order to determine the effect of the policy it will be necessary to analyze some other of its provisions, but before doing so the general nature of the business conducted by the insured should be stated.

The appellee's business is stated in the policy under the schedule of statements, as follows: "(3) Trade or business, stevedoring." In that business as conducted in the city of Portland, and in most, if not all, of the seaports of the United States and in many foreign countries, it was customary, at the time the policy was issued, to haul trucks loaded with cargo to and from the side of the vessel by attaching to these trucks a power unit which, for the present, we refrain from designating as an automobile or self-propelled vehicle because of the appellee's contention that this power unit is not a "vehicle" within the meaning of the policy. This power unit is described in the findings of the court as follows: "* * * A device commonly called a jitney, which is a self-propelled machine operated by a gasoline motor; that said machine was steered by a circular steering wheel and started by a hand crank; that it had four cylinders, four wheels, an ignition system, and a clutch and brake; that such machines were regularly and commonly used by plaintiff and other stevedores for hauling trucks on and about docks and warehouses and in other similar places."

This jitney weighed about three tons, had wheels about eight inches in diameter, with solid rubber tires. It was known to the broker when he procured the insurance for the appellee that such jitneys were used by the appellee and by all other stevedores engaged in that business at the port of Portland. The policy of insurance did not specify the exact amount of the premium to be paid by the insured in consideration for the indemnity thereby afforded, but provided that the premiums should depend upon the pay roll of the company, all as more particularly therein described (see condition 11 in policy in footnote). Premiums were actually paid monthly upon the pay roll of the company during the life of the policy upon the wages paid to the employees who were engaged in operating these jitneys. They were also engaged in performing other work, and did not devote themselves exclusively to that particular line of work. The appellee's first contention that, inasmuch as the policy not only covered the business of the appellee as stevedores, but also certain designated employees, including, among others, "warehouse and dock employees," there is a conflict between the condition relating to self-propelled vehicles and the insurance as to liability for injuries resulting from the work of those who were engaged as "warehouse and dock employees," in that such dock and warehouse employees were required as a part of their duties to use such self-propelled vehicles. Consequently, it is argued, the express provision of the policy insuring against injuries resulting from their work is inconsistent with the condition with reference to the instrumentality used by them if the jitney be held to be a "vehicle" within the meaning of the condition. In this regard appellee also contends that this jitney is not a vehicle. We think, however, that this latter position cannot be sustained, and that the so-called jitney was an automobile or self-propelled vehicle within the meaning of the policy.

We will endeavor to summarize other applicable provisions of the policy omitting parts that are not germane to the present inquiry. The policy agrees to indemnify the insured if any person or persons not in the insured's service shall sustain any bodily injuries by accident by reason of and during the progress of the insured's work described in statement No. 4 of said schedule for which injuries the insured is liable for damages, subject to the conditions and to the memoranda, if any, indorsed on the policy. It is provided that a compliance with such conditions and memoranda, and each of them, shall be a condition precedent to the right of recovery under the policy. Statement 4 of the "Schedule of Statements" follows the general statement of the insured's trade or business as "stevedores" (see footnote). Attached to the policy is a typewritten indorsement or rider dated the same date as the policy, August 13, 1926, making the coverage applicable to "any work or operations not described in special statement 4 and carried on by the assured." (See footnote.)

It follows that, if for a moment we disregard the above-quoted provisions of conditions 3-c-iv with reference to self-propelled vehicles, the policy covers injuries resulting from the work or operations requiring the use of the aforesaid jitneys. That is to say, a typewritten rider supplementing statement 4 with reference to the work to be covered is sufficiently broad in its terms to include the drivers or operators of motor vehicles if and when such drivers or operators are engaged in carrying on the work or operations of the assured. Before further considering the effect of this apparent conflict, we refer to other provisions of the policy which have some bearing on the question.

Paragraph 11 of the "conditions" relates to the adjustment of premium (see policy in footnote). These premiums, as we have stated, are based upon the earnings of the workmen employed by the insured.

It appears from this paragraph (11) that the premium is based, in part, upon the wages of chauffeurs operating automobiles unless they are covered by concurrent automobile insurance carried with the appellant company. Even then, if the chauffeurs are specially included in the classification of work described in this policy, their wages are to be included in estimating the amount of the premium. It would seem then from this printed form of policy which is evidently intended for general use for contractors and manufacturers that it was contemplated that chauffeurs could be specially included in the classification of work described in the policy by writing their occupation in blanks left for that purpose in statement 4. In other words, as we understand it, this clause with reference to the adjustment of premium contemplated that schedule of statements 4 could include "chauffeurs," if so agreed, under the head of "Description of work to be covered." Whether or not they were so included, their wages were to be included in determining the amount of the premium, under condition 11 of the policy, unless they came within the exceptions mentioned therein. Another provision of the policy (schedule of statements 5) would also require their wages to be included in the pay roll in estimating premiums. Schedule of statements 5 is, in part, as follows: "* * * The term `earnings' shall include all * * * wages * * * earned by all employes engaged in connection with the work described in Statement 4."

However, we do not place our decision on the theory that the inclusion of the wages of the employees who operated the "jitneys" in the schedule on which premiums were paid is decisive or persuasive in the case. The parties had the right to adjust the premium to be paid by the insured upon any basis they saw fit. However, it also should be stated that the inclusion of these employees in the pay roll on which the premium was based would tend to impress upon the assured the fact that the insurance covered such employees. This consideration might have persuasive force in deciding uncertainties in the policy, but we are...