Pacific Indem. Co. v. Run-A-Ford Co.

• Decision Date: 12 March 1964
• Docket Number: RUN-A-FORD,6 Div. 712
• Citation: 161 So.2d 789,276 Ala. 311
• Parties: PACIFIC INDEMNITY COMPANY v.COMPANY, Inc., et al.
• Court: Alabama Supreme Court

Page 789

161 So.2d 789

276 Ala. 311

PACIFIC INDEMNITY COMPANY v. RUN-A-FORD COMPANY, Inc., et al.

6 Div. 712.

Supreme Court of Alabama.

March 12, 1964.

Mudd, Baker & McDaniel and London, Yancey, Clark & Allen, Birmingham, for appellant.

Corretti & Newsom, Birmingham, for Run-A-Ford Co.

Hobart McWhorter, Jr., White, Bradley, Arant, All & Rose, Birmingham, for Porter Clothing Co.

COLEMAN, Justice.

This is an appeal by an automobile liability insurer from a decree declaring that insurer is obligated, by the terms of its policy, (1) to defend an action for personal injury which an injured party, hereinafter referred to as plaintiff, had brought against insured, and (2) to pay, up to the policy limits, any final judgment which might be rendered in favor of plaintiff and against insured in said action.

The complainant in this suit for declaratory decree is a corporation engaged in the business of delivering packages for various merchants. The respondent, Porter, operates a department store. Complainant, in accord with its contract with Porter, undertook to deliver a package of clothing to the residence of plaintiff.

We outline the pertinent facts as we understand them to be shown by evidence presented and facts stipulated on the trial of the declaratory suit. The dimensions of the package were 17 by 12 by 2 inches. An employee of complainant carried the package in the insured delivery truck to plaintiff's residence where the employee removed the package from the truck, walked to the front door of plaintiff's house, and, after ringing the door bell and finding no one at home, entered the screened-in porch and placed the package on the floor of the porch in front of the front door. From the time the employee removed the package from the truck until he placed the package on the floor in front of the door, the package did not leave the grasp of the employee's hands. After placing the package on the floor, the employee drove away in the truck and did not return to plaintiff's residence.

Thirty or more minutes after the employee drove off, plaintiff returned home. Before she left home, plaintiff had noticed a hand bill or paper in the screen door which opened onto the front porch. On returning home, plaintiff entered at the rear of the house and went to the front. As she started out the wooden door of the living room onto the front porch a package was leaning against the door. As plaintiff opened the door and started out, the package blocked the opening and caused plaintiff to fall and be injured.

To recover for her injury, plaintiff commenced an action at law against complainant and Porter. In her complaint, plaintiff alleged that an employee of complainant left the package in the doorway in such a manner that the doorway was blocked, and that her injuries were proximately caused by the negligence of complainant's employee in so leaving the package in plaintiff's doorway.

Complainant commenced the instant suit to obtain a declaration of insurer's obligations under the policy of insurance it had issued to complainant. As we understand the briefs, there is no controversy as to whether complainant, Porter, and complainant's employee were insured under the policy. We understand that all three were covered. We may sometimes refer to them separately or collectively as the insured.

In pertinent part the policy recites:

'Occupation of the named insured is Package Delivery.' (Emphasis supplied.)

Insurer 'Agrees . . . 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, caused by accident and arising out of the ownership, maintenance or use of the automobile.'

'(c) Use of the automobile for the purposes stated includes the loading and unloading thereof.'

Insurer first contends that the injury suffered by plaintiff is not an injury arising out of the use or unloading of the insured truck and, therefore, that insurer is not obligated to pay such sums as insured may become legally obligated to pay as damages because of plaintiff's injury; and that the court erred in holding that insurer is obligated to pay such sums.

A comprehensive annotation on the loading and unloading clause appears in 160 A.L.R. 1259, where pertinent cases are cited and discussed.

Insurer relies strongly on Commercial Standard Ins. Co. v. New Amsterdam Cas. Co., 272 Ala. 357, 131 So.2d 182, where this court held that the loading clause did not cover the injury when an automobile door was closed on a child's hand by a person who had placed certain plants in the automobile. This court saw 'no occasion to adopt either' of the so-called theories into which cases on loading and unloading have been classified. The court said:

'. . . The closing of the door was an independent act entirely outside of the act of loading the purchased articles and the term cannot be extended to bring the accident within the coverage of Commercial's policy.' (272 Ala. at pages 361, 362, 131 So.2d at page 185)

In the case at bar, the injury was allegedly caused by the negligent placing of the parcel. The cases seem to agree that the process of unloading includes at least the entire operation during which the article is lifted and removed from the vehicle up to the moment when the article has actually come to a place of rest outside the vehicle and the connection of the vehicle with the process of unloading has ceased. In the case at bar, we think unloading began, when the insured lifted the parcel from the truck, and ended when insured placed the parcel in front of plaintiff's door. The causative negligence charged is negligence which occurred during the unloading of the truck. In that respect, the instant case differs from Commercial Standard Ins. Co. v. New Amsterdam Cas. Co., supra, where the causative negligence occurred during 'an independent act entirely outside the act of loading.' The difference is sufficient to prevent the last cited case from controlling here.

Other cases cited by appellant may be distinguished or are not in point, as we understand them, and will not be discussed, except American Casualty Co. v. Fisher, 195 Ga. 136, 23 S.E.2d 395, 144 A.L.R. 533, where the court held that the unloading clause did not cover an injury which occurred when insured removed an adding machine from a table on which he had placed another adding machine, which he was delivering. The injury allegedly resulted from the negligence of insured in removing the machine from the table.

There are two statements in the Fisher opinion which lead us to the view that Fisher should not be followed in the instant case. In the first statement, with reference to policy provisions similar to those here considered, the Supreme Court of Georgia quoted from Zurich &c. Co. v. American Mutual Liability Insurance Co., 118 N.J.L. 317, 192 A. 387: 'These words are plain and unambiguous, and delimit with understandable certainty the liability imposed upon the insurer.' We incline to the view that the phrase, 'loading and unloading,' is ambiguous. That view has been stated as follows:

'The fact that construction of the 'loading and unloading' clauses of these insurance contracts has provoked such a conflict in the decisions of the courts as to establish two rules or theories of construction, that is, the 'coming to rest' theory and the 'complete operation' rule or theory, shows inescapably that the language employed is considered ambiguous and susceptible of more than one construction; hence should be interpreted liberally in favor of the insured and strictly against the insurer who wrote the policy. . . .' American Employers' Ins. Co. v. Brock, Tex.Civ.App., 215 S.W.2d 370, 373.

The second statement in Fisher to which we refer is:

'. . . Unless a policy in such a case made it clear that a liability of such a different nature was intended to be assumed, or risks of such different character embraced, we should be very slow to import into it those views. . . .' (195 Ga. at page 142, 23 S.E.2d at page 398)

The rule in Alabama has been stated to be that insurance policies will be construed most strongly against the insurer. Trinity Universal Insurance Co. v. Wills, 273 Ala. 648, 650, 143 So.2d 846. The second statement quoted from the Fisher case does not seem to be in accord with the Alabama rule. We therefore conclude that we should not follow the rule of the Fisher case.

By the instant policy, insurer agreed to pay on behalf of insured sums which insured shall become legally obligated to pay because of bodily injury 'arising out of' the use, including unloading, of the truck.

' The words 'arising out of' involve the idea of causal relationship between the employment (unloading) and the injury, while the term 'in the course of' relates more particularly to the time, place and circumstances under which the injury occurred. The phrases are not synonymous; . . .' (Par. Supplied.) Wooten v. Roden, 260 Ala. 606, 610, 71 So.2d 802, 805. The instant policy does not require that the injury occur during or in the course of the unloading. The insurer did not so limit its liability.

Plaintiff's injury here allegedly resulted from negligent placing of the package. The placing of the package was part of the unloading. We are of opinion that the injury thus allegedly arose out of the unloading, and that, because the policy covered injuries arising out of the unloading, the policy covered insured's liability to pay for the injury here. It will be understood, of course, that insured's liability to pay is not being determined in the instant stant suit, and that insured will be liable to pay for plaintiff's injury only if the evidence, presented on the trial of plaintiff's action against insured, shows that the negligent placing of the package occurred as alleged and proximately caused plaintiff's injury.

At least two cas...