Roach v. Soles
| Decision Date | 08 February 1954 |
| Docket Number | No. 6936.,6936. |
| Citation | 120 F. Supp. 400 |
| Court | U.S. District Court — Northern District of California |
| Parties | ROACH v. SOLES et al. |
John E. Griffin, Modesto, Cal., for plaintiff.
Edward A. Friend, San Francisco, Cal., for defendant Canadian Indemnity Co.
A complex problem of legal semantics, involving three apparently simple words, confronts the Court in the instant case.
The troublesome terms appear in a liability indemnity insurance policy. They occur in the definition of "premises", which are described as "including buildings and structures thereon and the ways immediately adjoining".
How close is "immediately"?
When are ways "adjoining" to premises?
On July 8, 1953, the plaintiff, appearing through his guardian ad litem, filed in the Superior Court of Stanislaus County, California, a complaint containing the following allegations, briefly summarized:
A suit was filed by the plaintiff through his guardian to recover damages for personal injuries received by the former on or about November 23, 1949, which injuries were inflicted by a dog, of which the defendants Soles were the owners and keepers. The injury (sic) occurred on the defendants' premises, known as the Sixth Street Market, at the southeast corner of Sixth and L Streets in Modesto, Stanislaus County.
On November 21, 1952, a judgment for $7,500 and costs was rendered in favor of the plaintiff, after a jury trial in the Superior Court of Stanislaus County.
The defendants Soles had in full force and effect at the time of the injury, a contract of insurance with the defendant indemnity company, hereinafter referred to as the company.
The policy provided that the company would pay, on behalf of the insured, all sums that the latter should become obligated to pay by reason of liability imposed upon them by law, including damages for care or loss of services because of bodily injury, sickness, or disease.
The policy further provided that the company would pay each person who sustains bodily injury, etc., caused by accident and arising out of the use or maintenance of the insured premises or the personal activities of the insured, the reasonable expenses of necessary medical, surgical, etc., services. The insurance contract covered the premises upon which the injury occurred, and specifically provided that "it" (sic) would pay on behalf of the insured all sums that the latter should become obligated to pay by reason of any injury inflicted upon any person by a dog owned by the insured or in "his" (sic) possession at the time of the injury.
A dispute has arisen between the plaintiff and the defendants as to whether the injury suffered by the plaintiff as a result of the dog bite was covered by the policy. It is the contention of the company that the injury is not such an accident as is so covered, while the plaintiff maintains otherwise. It is therefore necessary that a declaratory judgment be rendered to construe the policy, etc. An actual controversy exists.
The plaintiff prays for a declaratory judgment, that the court decree that the plaintiff is entitled to be compensated by the insurance company of the defendants Soles for the expenses and damages awarded to "the plaintiff in that certain action heretofore mentioned", that the company compensate the plaintiff in the sum of $7,500, etc.
On July 27, 1953, the defendant company filed in this court a petition of removal of the cause from the Superior Court of Stanislaus County to this Court on the ground of diversity of citizenship.
The petition alleges that, with the exception of the company, each defendant was joined "merely for the purpose of preventing petitioner from removing this action to a United States District Court; no relief is prayed (for) by the plaintiff against such parties; and the interests of the nominal defendants * * * Soles are shown by the Superior Court complaint to be adverse to those of the petitioner and parallel with those of the plaintiff".
On July 27, 1953, the Company also filed an answer, admitting that it was a corporation authorized to engage in the insurance business in California, and alleging that it exists by virtue of the laws of Canada. The answer denies that the injury in question occurred on the premises of the defendants Soles, admits the allegation regarding the proceedings in the Superior Court of Stanislaus County, and admits that on the date of the injury there was in force a liability policy issued to Mildred Reynold Soles dba Sixth Street Market, at 1130 Sixth Street, Modesto, the coverage under such policy being $5,000 for each person and $10,000 for each accident.
The answer denies, however, that the policy provides for payment of all legal liability of the insured and provides for payment of liability by reason of any injury inflicted upon any person by a dog owned or kept by the insured. It is asserted that liability for the accident in question is specifically excluded by the policy.
The existence of a dispute of the kind described by the complaint is admitted by the Company.
On July 31, 1953, the plaintiff filed an answer to the petition for removal, denying that each defendant other than the company is a formal or nominal party, joined merely for the purpose of preventing the company from removing the action "from" (sic) (to) the United States District Court. The plaintiff asserts that "an actual dispute and controversy exists" between the defendants Soles and the plaintiff, and denies that no relief is prayed for by the plaintiff against the defendants Soles. Accordingly, the plaintiff asks that the company's petition be dismissed, etc.
On September 23, 1953, the plaintiff filed a motion to remand the cause to the Superior Court of Stanislaus County, which motion was denied on October 13, 1953.
The cause was tried to the Court without a jury on November 10, 1953.
On Sunday, November 23, 1949, the plaintiff, at that time twelve years old; his sister, Marlene Roach; and their friend, Juanita Jackson, were crossing L and Sixth Streets on their way to purchase candy at the Sixth Street Market, situated at the southeast corner of that intersection.
To reach the candy store, the three children crossed over L Street, walking in a southerly direction to the southwest corner of Sixth and L. From there they proceeded to cross Sixth Street, walking in a easterly direction toward the store.
The two girls testified that they walked ahead of the plaintiff. As one of the girls approached a few feet from the east curb of Sixth Street, a dog came either from the front of the store, out the front door, or out to the front of the store from the south side of the premises, which side was enclosed by a fence, in which enclosure the defendants kept the dog.
The dog walked past the two girls in the street and attacked the boy. It is the contention of the plaintiff that the "accident" occurred approximately in the center of Sixth Street, in the middle of the crosswalk at the south boundary of Sixth and L Streets.
The store faces west on Sixth Street. The front doors are of the "accordion" type, capable of making an opening all the way across the front of the market.
The plaintiff insists that "All doubts must be decided in favor of the injured (sic)." If what is meant is that all reasonable doubts must be resolved in favor of the insured, there can be no quarrel with that general statement.
The limits of this generalization, however, have been aptly stated by the Supreme Court of California. In New York Life Ins. Co. v. Hollender, 1951, 38 Cal.2d 73, 81, 237 P.2d 510, 514, the Court said:
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Lendway v. Muse
...1041, 126 N.Y.S.2d 903 (App.Div.1953), leave to appeal denied 283 App.Div. 696, 128 N.Y.S.2d 532 (Ct.App.1954). Contra: Roach v. Soles, 120 F.Supp. 400 (N.D.Cal.1954) (seems wrongly decided). But we find no reported case dealing with liability for an intersection accident in relation to a c......
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...footings of the building, the contention being that this was covered by Division 2(10) of the specifications.3 See: Roach v. Soles (Cal.D.C.1954), 120 F.Supp. 400, 404.4 See: People v. Bauer (1966), 241 Cal.App.2d 632, 642, 50 Cal.Rptr. 687, 694.5 Webster's Third New International Dictionar......
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