San Fernando Valley Crane Service, Inc. v. Travelers Ins. Co.

• Decision Date: 17 August 1964
• Citation: 40 Cal.Rptr. 165,229 Cal.App.2d 229
• Parties: SAN FERNANDO VALLEY CRANE SERVICE, INC., a California corporation, Plaintiff and Appellant, v. The TRAVELERS INSURANCE COMPANY, a corporation, Defendant and Respondent. Civ. 27057.
• Court: California Court of Appeals Court of Appeals

Page 165

40 Cal.Rptr. 165

229 Cal.App.2d 229

SAN FERNANDO VALLEY CRANE SERVICE, INC., a California corporation, Plaintiff and Appellant, v. The TRAVELERS INSURANCE COMPANY, a corporation, Defendant and Respondent.

Civ. 27057.

District Court of Appeal, Second District, Division 3, California.

Aug. 17, 1964.

Hearing Denied Oct. 15, 1964.

Kinkle, Rodiger, Graf & Dewberry and David W. Graf, Los Angeles, for appellant.

Schell & Delamer, Fred B. Belanger and Austin C. Smith, Jr., Los Angeles, for respondent.

FORD, Justice.

The plaintiff San Fernando Valley Crane Service, Inc. (hereinafter called Crane Service) has appealed from a judgment in an action for declaratory relief brought by it against The Travelers Insurance Company (hereinafter called Travelers), Consolidated Rock Products Company (hereinafter called Consolidated), and Harold Bartholomew. The judgment declared that Travelers was under no duty to defend or indemnify Crane Service or its employee, Bartholomew, with respect to a cause of action of LeRoy Gibson for damages for personal injuries arising out of an accident which occurred when concrete was being removed by means of Crane Service's crane from a truck of Consolidated into position on a building under construction.

Part of the findings of fact of the trial court were as follows: 1. On January 16, 1958, Mayfair Construction Company (hereinafter called Mayfair) was, as the general contractor, engaged in 'certain construction.' 2. Mayfair had entered into a written contract with Consolidated for the purchase of ready-mixed concrete. Delivery was to be made by truck at the curb except that, if ordered by Mayfair, delivery would be made at another point which was accessible to Consolidated's truck. 3. On January 16, 1958, Consolidated brought cement to the job site in a 'mixer-truck.' Mounted on the truck bed behind the cab was a large revolving drum containing the cement aggregate which was mixed in transit. The drum had a circular opening at the rear of the truck. Unloading of the cement was mechanically done by causing the drum to tilt and thus spill the cement into a chute which was a part of the vehicle. 4. Under an agreement with Mayfair, Crane Service undertook to furnish to Mayfair a truck-crane, together with an operator, 'for the purpose of transporting said cement in the receptacle into which it had been delivered into certain forms on the job site into which it was impossible for Consolidated to pour its cement so purchased because of the height of such forms.' The truck-crane furnished was one which Crane Service had leased from its owner. The receptacle was a bucket owned by Crane Service and 'used in conjunction with the use of said truck-crane.' 5. 'The truck crane * * * was a motor vehicle registered in and bearing a California automobile license plate and was capable of being driven and was driven on highways * * *. Mounted on a platform to the rear of the truck cab was a crane which pivoted on a table to which the boom of the crane was pivotally mounted so as to permit the operator of the truck crane to transport receptacles or other items attached to the boom hooks upon the highway or otherwise. The truck crane was * * * a single unit and the crane could not have been operated without the connection with and the power provided by the truck engine. The draw works of the crane portion of the truck was * * * operated by a master drive chain running to the truck transmission.' 6. At the time of the accident to LeRoy Gibson, 'Consolidated had delivered into the bucket receptacle provided by Mayfair through' Crane Service 'a portion of its cement so purchased.' 7. 'Following said delivery of said cement into such bucket receptacle, Consolidated exercised absolutely no control over the cement, the bucket receptacle, or the truck-crane.' Crane Service 'exercised sole and exclusive control over said bucket receptacle and said truck-crane by and through its said employee, Bartholomew.' 8. While Crane Service 'was transporting said cement in such bucket receptacle to forms prepared by Mayfair for the purpose, the boom of such truck-crane collapsed, and the tip of the boom struck LeRoy Gibson, a construction worker employed on the job site by Mayfair.' 9. Such collapse 'occurred as a sole and proximate result of negligence on the part of Bartholomew [Crane Service's employee] in his operation, maintenance, and control of the truck-crane.' 10. At the time of the collapse of the boom, Consolidated and its employee, Loreno, 'had completed every act, contemplated or possible, to be done by them in delivering that portion of the cement where the consignee, Mayfair, wanted it delivered.' 11. Thereafter Gibson filed an action for damages against Crane Service, Consolidated, Bartholomew, and the concern which had leased the 'truck-crane' to Crane Service. In his amended complaint Gibson alleged that his injury was proximately caused by the defective condition of the crane, of which condition the defendants had knowledge, and by its negligent operation and maintenance. It was not alleged in that pleading that the injury was caused by 'the use of any defendant of the Mixer Truck owned by Consolidated * * * or the use of the Mixer Truck owned by Consolidated in the unloading thereof or otherwise or at all.' 12. When the Gibson action came on for trial, it was settled for the sum of $61,500, of which amount $40,000 was paid on behalf of Crane Service, $1,500 on behalf of Consolidated, and $20,000 on behalf of the concern from which Crane Service had leased the equipment. 13. At the time of the accident Consolidated was the named insured under a comprehensive liability policy issued by Travelers. It was therein provided that: 'Use of an automobile includes the loading and unloading thereof.' It was further provided as follows: 'The unqualified word 'insured' includes the named insured and also includes * * * (2) under Coverages A [bodily injury liability] * * * any person while using an owned automobile or a hired automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission, * * *' 14. Consolidated's truck was not being used by either Crane Service or Bartholomew at the time of the accident. 15. After the happening of the accident, Crane Service and Bartholomew 'made demand and tender upon Travelers claiming in opposition to the contentions of the Travelers that the Travelers automobile policy afforded protection to them which demand and tender were declined.' 16. At the time of the accident, Crane Service was insured under a comprehensive liability policy issued by Aetna. That policy was in part as follows: 'The unqualified word 'insured' includes the named insured and also includes * * * (2) under coverages A [bodily injury liability] and C, any person while using an owned automobile or a hired automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission. * * *' 'Automobile,' within the meaning of the policy, was defined in part in the following language: 'Except where stated to the contrary, the word 'automobile' means a land motor vehicle as follows: * * * (2) Hired Automobile--an automobile used under contract in behalf of, or loaned to, the named insured. * * *' With respect to the matter of other insurance, the Aetna policy provided: 'If the insured has other insurance against a loss covered by this policy the Company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the declarations bears to the total applicable limit of liability of all valid and collectable insurance against such loss; provided, however, the insurance under this policy with respect to loss arising out of the maintenance or use of any hired automobile insured on a cost of hire basis or the use of any nonowned automobile shall be excess insurance over any other valid and collectable insurance.' 17. 'The truck-crane leased by [Crane Service] * * * was such a 'hired automobile' as defined in said Aetna Policy.' Gibson's bodily injury was caused by accident and 'arose out of the use of said truck-crane.' 18. 'The insurance under said Aetna Policy is primary insurance and no insured under such policy had or has any other insurance against the loss occasioned by the Gibson accident...