Pennsylvania Threshermen & Farmers' Mut. Cas. Ins. Co. v. Shirer

• Citation: 168 A.2d 525,224 Md. 530
• Decision Date: 20 March 1961
• Docket Number: No. 192,192
• Court: Maryland Court of Appeals
• Parties: PENNSYLVANIA THRESHERMEN & FARMERS' MUTUAL CASUALTY INSURANCE COMPANY v. William A. SHIRER.

Page 530

224 Md. 530

168 A.2d 525

PENNSYLVANIA THRESHERMEN & FARMERS' MUTUAL CASUALTY INSURANCE COMPANY v. William A. SHIRER.

No. 192.

Court of Appeals of Maryland.

March 20, 1961.

George D. Solter, Baltimore (Due, Nickerson, Whiteford & Taylor, Baltimore, on the brief), for appellant.

Stephen R. Pagenhardt, Oakland (Walter W. Dawson, Oakland, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, MARBURY and SYBERT, JJ.

HAMMOND, Judge.

The appeal is by an insurance company from a judgment against it in a suit by an insured, a contractor, seeking reimbursement under an automobile policy for damages he had paid when his crane, mounted on a truck, ran out of control and struck a house and an automobile. The case was tried before the court sitting without a jury on a stipulation of facts, which included a statement given after the accident by the operator of the crane.

The appellant insurance company insured the automobiles of the contractor under an automobile liability policy. Soon after its issuance, the policy was amended by endorsement so as to include in its coverage a Michigan crane or 'power shovel,' a twenty-ton piece of equipment, consisting of a motor truck on which is mounted a crane, with an interchangeable 'backhoe,' both crane and backhoe being actuated by a power plant separate from the regular truck engine which propels the truck chassis. The operator of the rig sits in a revolving cab on the rear of the chassis and from there either drives the truck or operates the crane or the backhoe. Both engines cannot be operated at the same time, we were told at the argument.

By another endorsement, added at the time the crane was covered, the definition in the policy of 'Automobile' was amplified to exclude and include as follows 'The 'Definition of Automobile' is amended as follows:

'1. The following described equipment shall be deemed an automobile while towed by or carried on an automobile not so described, but not otherwise: if of the crawler-type, any tractor, power crane or shovel, ditch or trench digger; any farm-type tractor; any concrete mixer other than of the mix-in-transit type; any grader, scraper, roller or farm implement; and, if not subject to motor vehicle registration, any other equipment not specified in (2) below, which is designed for use principally off public roads.

'2. The following described equipment shall be deemed an automobile while towed by or carried on an automobile as above defined solely for purposes of transportation or while being operated solely for locomotion, but not otherwise; if of the non-crawler type, any power crane or shovel, ditch or trench digger; and any air-compressing, building or vacuum cleaning, spraying or welding equipment or well drilling machinery.' (Emphasis supplied.)

While the policy as amended was in force, the crane, having dug the foundation for a dwelling near Oakland, was finishing the digging of a sewer trench from the house to the main sewer line when the driver 'went to move about four feet up the bank to make another dig when the gear suddenly disengaged and the shovel came back down the hill before I could get the air brakes on.'

The bucket on the front of the crane hit and damaged a building and an automobile. The owner of the building and the owner of the car each sued the contractor and recovered a judgment which has been paid. The insurance company disclaimed liability and the contractor brought the present suit against it.

The defense of the company was below, and is here, that the crane was not being 'operated solely for locomotion but not otherwise' when the mishap occurred. It would appear from a discussion in Liberty Mutual Insurance Co. v. Dooley Electric Company, Sup., 133 N.Y.S.2d 785, 789 (which held as to a 1951 comprehensive general liability policy that a 'crane mobile' which was not subject to motor vehicle registration under New York law at the time of the accident and was not clearly excluded or included among the exceptions in the policy, was not an automobile excluded by the policy), that 'The Mutual Insurance Rating Bureau, operating under Article VIII of the Insurance Law, filed a revision of the general liability manuals with the Superintendent of Insurance. The revision was effective December 15, 1952, and by it there was included in the definition of automobile a power crane when its operation off premises of the insured is solely for locomotion. That clarification was regarded as necessary because of the development in recent years of relatively high-speed equipment of this sort as presenting a new and additional hazard not existing when equipment was invariably slow moving and almost always of the crawler type.'

The insurance company's argument is, essentially, that the policy covered the crane only when it was travelling from its owner's place of business to a job site or from job site to job site. Since it can find no case to support this contention, it refers to and relies on certain bulletins...