Pavlik v. St. Paul Mercury Insurance Company

• Decision Date: 09 June 1961
• Docket Number: No. 13236.,13236.
• Parties: Roy D. PAVLIK, Sr. and Herman G. Lorenz, and Hartford Accident and Indemnity Company, a corporation, Plaintiffs-Appellants, v. ST. PAUL MERCURY INSURANCE COMPANY, a corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

291 F.2d 124 (1961)

Roy D. PAVLIK, Sr. and Herman G. Lorenz, and Hartford Accident and Indemnity Company, a corporation, Plaintiffs-Appellants, v. ST. PAUL MERCURY INSURANCE COMPANY, a corporation, Defendant-Appellee.

No. 13236.

United States Court of Appeals Seventh Circuit.

June 9, 1961.

Thomas J. Weithers, Chicago, Ill., Joseph H. Hinshaw, John M. Moelmann, Oswell G. Treadway, Chicago, Ill., for appellants.

Charles D. Snewind, Chicago, Ill., Albert M. Howard, Chicago, Ill., for appellee.

Before HASTINGS, Chief Judge, and DUFFY and KNOCH, Circuit Judges.

KNOCH, Circuit Judge.

Plaintiffs brought this action against defendant for a declaratory judgment that plaintiffs Roy D. Pavlik, Sr. and Herman G. Lorenz were entitled to coverage under an automobile insurance policy issued by defendant St. Paul Mercury Insurance Company (hereinafter called "St. Paul") to O'Laughlin Redi-Mix Concrete Company (hereinafter called "O'Laughlin") with respect to injuries incurred by Ray Shields, an employee of Raymond Concrete Pile Company (hereinafter called "Raymond"). The District Court entered judgment in favor of St. Paul and this appeal followed.

The facts are substantially undisputed. On January 24, 1958, the date of the accident which resulted in injury to Mr. Shields, his employer Raymond was engaged in construction work on a toll road in Illinois. Raymond had leased a dragline and crane from Mr. Pavlik and Mr. Lorenz, who were operating it at the site of construction. This equipment was covered by insurance issued by plaintiff Hartford Accident and Indemnity Company. At about 4:30 P.M. on January 24, 1958, a truck owned by O'Laughlin and insured by St. Paul, delivered a load of concrete which was mixed in the truck for use at the site of construction. The O'Laughlin truck carried a large metal mixing drum and a supply of water which was carried to the drum by a hose attached to the truck. When the concrete had been mixed, it was taken from the drum through a collapsible chute, also attached to the truck. The O'Laughlin truck and its mixing apparatus were all operated by Robert Earl Wendt, a driver for O'Laughlin. The dragline and crane owned and operated by Mr. Pavlik and Mr. Lorenz, were used to unload the mixed concrete, to carry it some distance away and to deposit it on a piling which was to form a permanent part of the bridge under construction. Mr. Shields stood at the rear of the O'Laughlin truck to guide the bucket of the dragline under the chute through which the mixed concrete passed.

After all the concrete had been removed from the O'Laughlin truck, and while the last of the mixed concrete was being taken by the dragline to its place in the construction, Mr. Wendt washed out the mixing drum with the water from the hose, folded the collapsible chute into its inoperative position, and moved the truck away a few feet from the site of the unloading. By this time all the concrete had been deposited in its permanent place in the construction. The dragline bucket was then brought back to the truck. Mr. Shields reached for the truck's water hose to clean out the bucket. Mr. Shields testified that it was a customary part of the concrete pouring operation to wash out the bucket on the dragline at the end of the day's operations. However, Mr. Wendt, the driver of the truck, testified that it was not customary. The bucket struck Mr. Shield's hand. He brought suit against Mr. Pavlik and Mr. Lorenz, who called on St. Paul to defend the action on the ground that they were using the O'Laughlin truck and were also engaged in unloading it at the time of the accident, within the...