Maryland Casualty Co. v. Dalton Coal & Material Co., 339.

• Decision Date: 21 January 1949
• Docket Number: No. 339.,339.
• Court: U.S. District Court — Western District of Missouri
• Parties: MARYLAND CASUALTY CO. v. DALTON COAL & MATERIAL CO. et al.

81 F. Supp. 895

MARYLAND CASUALTY CO. v. DALTON COAL & MATERIAL CO. et al.

No. 339.

United States District Court W. D. Missouri, Central Division.

January 21, 1949.

Moser, Marsalek, Carpenter, Cleary & Carter, and John S. Marsalek, all of St. Louis, Mo., and Ragland, Otto, Potter & Embry, of Jefferson City, Mo., for plaintiff.

Howard B. Lang, Jr., of Columbia, Mo., for defendant M. F. A. Mut. Ins. Co.

Ralph L. Alexander, of Columbia, Mo., for defendants Sam F. Dalton and Dalton Coal and Material Co.

REEVES, Chief Judge.

The defendants have filed a motion for summary judgment on the two-fold ground "(a) That plaintiff's time to file brief in support of its complaint has expired", and, "(b) That there is no genuine issue as to any matter of fact and that defendants are entitled to judgment as a matter of law."

After filing the motion for summary judgment the plaintiff submitted its brief and joined issue on questions of law with the defendants. On October 18th, last, during the session of the regular term of court in the Central Division at Jefferson City, the parties (except of course the plaintiffs in the state court, Geraldine Edwards Reid and C. P. Reid her husband) stipulated that they would submit the case upon an Agreed Statement of Facts. This was done on November 29, 1948. Both parties have now supplied briefs in support of their legal contentions on the facts agreed upon. Subdivision (b) of the defendants' motion for a summary judgment is as follows: "That there is no genuine issue as to any matter of fact and that defendants are entitled to judgment as a matter of law."

Since the parties have agreed upon the facts, it would follow that only legal questions are raised and both parties have asked for the identical relief covered by the quoted portion of the motion for a summary judgment.

From the agreed statement of facts and from the pleadings it appears that Dalton Coal and Material Company was at all times mentioned in the pleadings engaged in the retail coal business in the City of Columbia, Missouri, and that deliveries of coal were made by trucks operated by employees of the said Dalton Coal and Material Company. For its protection against liability, on January 22, 1947, it obtained from the plaintiff a policy of liability insurance for the term beginning February 1, 1947 and ending February 1, 1948. By the terms of this policy, and for a stipulated premium, the plaintiff agreed to indemnify the assured for liability claims established against it, not exceeding $20,000 for bodily injury on each person, or an aggregate of $40,000 in any one accident for all persons. The policy covered the delivery trucks used by its assured in delivering coal to its customers. The policy was characterized as a "Comprehensive Automobile Liability Policy." By the specific terms of the policy the plaintiff agreed:

"I. To pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages, * * * because of bodily injury * * * sustained by any person or persons, caused by accident and arising out of the ownership, maintenance or use of any automobile." (Emphasis mine.)

This was followed by a definition of the word "use", as follows:

"Conditions

* * *

4. Purposes of Use Defined. * * * (c) Use of the automobile for the purposes stated includes the loading and unloading thereof."

There was a further provision in the policy as follows:

"Insuring Agreements

* * *

II. * * * It is further agreed that as respects insurance afforded by this policy the company shall (a) defend in his name and behalf any suit against the insured alleging such injury * * * and seeking damages on account thereof even if such suit is groundless, false or fraudulent; * * *." (Emphasis mine).

The right was vouchsafed to the company "II. * * * (a) * * * to make such investigation, negotiation and settlement of any claim or suit as may be deemed expedient by the company."

The foregoing excerpts set forth the contractual arrangement between the insurer and the assured so far as relevant in determining the issues in the case. It appears from the Agreed Statement of Facts that the assured, by its employees and by the use of one of its automobiles covered by the policy, made delivery of coal to one John Moscow in Columbia, Missouri, about 9 A.M. on March 24, 1947. The coal was delivered to or in a building owned by the said John Moscow; and, quoting from the Agreed Statement of Facts:

"The delivery was made by means of an automobile truck equipped with a belt conveyor. The driver removed the cover from the coal chute. The cover was not fastened in any way, and had no fastening device attached to it. He extended the belt conveyor into the chute and thereby unloaded the coal. The driver, using his glove, wiped out the inside of the rim in which the manhole cover rested and replaced the cover inside of the rim. The driver, upon finishing his work, left the scene."

About three and one-half hours later, on the same day, one of the plaintiffs in the state court proceeding, namely, Geraldine Edwards Reid, while walking on the sidewalk at the point where the coal was unloaded, "stepped upon the above mentioned metal coal-hole cover located in the sidewalk, whereupon said cover slipped out of place or turned, permitting her to fall into the opening beneath, whereby she sustained personal injuries."

A few days later, towit, April 2, 1947, the injured woman with her husband joining, through their attorney, made claim upon the coal company for damages. All interested parties were notified of the claim, including the plaintiff and another insurer carrying a general liability policy on the coal company. The other insurer denied liability immediately after being notified. Upon receipt of the notice plaintiff investigated, as was its right under its policy, the circumstances of the claimed injury and after some further negotiations and correspondence "declined to take any part in the proposed settlement."

On August 12, 1947 the plaintiff advised its assured:

"* * * that the alleged accident was not covered by the Maryland Casualty Company's policy above mentioned, because the replacing of the cover of the coal hole was not in any way connected with the use of the Dalton Coal Company's truck; furthermore, that the accident was not covered under the `loading and unloading' provision of the policy because the act of unloading was...