Schmidt v. Utilities Ins. Co.

• Decision Date: 03 July 1944
• Docket Number: 38989
• Citation: 182 S.W.2d 181,353 Mo. 213
• Parties: Harvey Schmidt v. Utilities Insurance Company, a Corporation, Garnishee of Fleming-Young Coal Company, a Corporation, Appellant, and Victor Packman, Assignee and Trustee
• Court: Missouri Supreme Court

182 S.W.2d 181

353 Mo. 213

Harvey Schmidt v. Utilities Insurance Company, a Corporation, Garnishee of Fleming-Young Coal Company, a Corporation, Appellant, and Victor Packman, Assignee and Trustee

No. 38989

Supreme Court of Missouri

July 3, 1944

Rehearing Denied September 5, 1944.

Appeal from Circuit Court of the City of St. Louis; Hon. Robert J. Kirkwood, Judge.

Affirmed.

John S. Leahy, John J. Nangle, George Gantner and William O'Herin for appellant.

Garnishee is not indebted to Fleming-Young Coal Company under the agreements, terms and conditions of the automobile liability insurance policy garnishee issued to said company, and plaintiff is not entitled to judgment against garnishee by reason thereof, because: plaintiff's injuries, for which he recovered damages against Fleming-Young Coal Company, were not caused by accident arising out of the ownership maintenance or use of said company's automobile truck including unloading thereof. The suit in which plaintiff recovered judgment for his injuries was not based on, nor was recovery had on a theory involving the use of an automobile truck, or the unloading of it. It was predicated on a theory of negligence entirely disassociated from such use, namely, that the employees of Fleming-Young Coal Company had negligently placed two wooden blocks on a public sidewalk, causing an obstruction thereon in violation of a city ordinance. There was no causal relation between plaintiff's fall and injuries and the use and process of unloading an automobile truck of Fleming-Young Coal Company. St. Paul Mercury Indemnity Co. v. Standard Accident Ins. Co., 11 N.W.2d 794; American Casualty Co. v. Fisher, 23 S.E.2d 395, 195 Ga. 136; 7 Appleman's Ins. Law and Practice, secs. 4317, 4322; Morgan v. New York Casualty Co., 188 S.E. 581, 54 Ga.App. 620; Luchte v. State Automobile Mut. L. Ins. Co., 197 N.E. 421, 50 Ohio App. 5; Stammer v. Kitzmiller, 276 N.W. 692, 226 Wis. 348; Caron v. American Motorists' Ins. Co., 178 N.E. 286, 277 Mass. 156; Franklin Co-op Creamery Assn. v. Employers' Liability Assur. Corp., 273 N.W. 809, 200 Minn. 230; Ocean Acc. & Guar. Corp. v. J.B. Pound Hotel Co., 26 S.E.2d 116, 69 Ga.App. 447; Maryland Cas. Co. v. United Corp. of Mass., 35 F.Supp. 570; United States Fid. & Guar. Co. v. Breslin, 49 S.W.2d 1011, 243 Ky. 734; Zurich General Acc. Co. v. American Mut. L. Ins. Co., 192 A. 387, 118 N.J.L. 317.

Donald Gunn, Frank P. Aschemeyer, James A. Waechter and Mark D. Eagleton for respondent.

(1) Garnishee is bound by the issues adjudicated by the judgment rendered in favor of the plaintiff and against the Fleming-Young Coal Company. Soukop v. Employers' Liability Assur. Corp., 108 S.W.2d 86; Dolph v. Maryland Cas. Co., 303 Mo. 534, 261 S.W. 330. (2) A policy of liability insurance must be liberally construed in favor of the insured so as to effectuate the insurance and not defeat it. Words or phrases of the policy should be given their natural and ordinary meaning. Soukop v. Employers' Liability Assur. Corp., 108 S.W.2d 86; Hoover v. Natl. Casualty Co., 162 S.W.2d 363; Maryland Cas. Co. v. Cassetty, 119 F.2d 602. (3) The provision that the damages insured against "arise out of the use of the automobile" does not limit policy coverage to injuries which are the proximate result of such use or which occur, in point of time, contemporaneously with such use. Merchants Co. v. Hartford Acc. & Ind. Co., 188 So. 570; Mullen v. Hartford Acc. & Ind. Co., 191 N.E. 394; Owens v. Ocean Acc. & Guar. Corp., 109 S.W.2d 928; Panhandle Steel Products Co. v. Fidelity Union Cas. Co., 23 S.W.2d 799; Quality Dairy Co. v. Ft. Dearborn Cas. Underwriters, 16 S.W.2d 613. (4) By policy definition, the use of the trucks included the transportation or delivery of merchandise "and uses incidental thereto" in connection with the business of Fleming-Young Coal Company, and also the "loading and unloading thereof." The policy covered all injuries arising out of the process of unloading or delivery of merchandise, even though the trucks were not physically or immediately involved in the injury. Maryland Casualty Co. v. Cassetty, 119 F.2d 602; Maryland Casualty Co. v. Tighe, 115 F.2d 297; Panhandle Steel Products Co. v. Fidelity Union Cas. Co., 23 S.W.2d 799; B. & D. Motor Lines, Inc., v. Citizens Casualty Co., 43 N.Y.S. 486; State ex rel. v. District Court, 100 P.2d 932; Avery v. American Automobile Ins. Co., 166 S.W.2d 471; Definition of "arise": Webster's New International Dictionary.

Dalton, C. Bradley and Van Osdol, CC., concur.

OPINION

DALTON

Garnishment proceeding in aid of an execution under a $ 15,000 judgment against the Fleming-Young Coal Company (hereinafter referred to as Coal Company). Defendant Victor Packman, assignee and trustee under an assignment for the benefit of creditors of Coal Company, disclaimed any interest in the alleged indebtedness superior to plaintiff's interest. The cause was tried to the court without aid of a jury and garnishee was found to be indebted to Coal Company in the sum of $ 10,000, together with certain interest and costs. Upon garnishee's failure to discharge itself judgment was entered in favor of plaintiff and against the garnishee for the amount of such indebtedness. Garnishee has appealed.

If garnishee is indebted to Coal Company it is under the terms and provisions of a certain automobile liability insurance policy, referred to as a fleet policy, covering some of Coal Company's automobile delivery trucks. The policy, dated September 28, 1937, was in full force and effect and covered the two automobile trucks, which were used on December 21, 1937 to make deliveries of coal to St. Anthony's Hospital, in the City of St. Louis, at the point where plaintiff was subsequently injured. Except for testimony concerning the identity of the automobile trucks used in making the deliveries on that occasion, the cause was submitted upon an agreed statement of facts. The admitted facts are about as follows: Plaintiff was walking along the public sidewalk on Arkansas street, alongside of St. Anthony's Hospital, about 5:30 p.m., and after dark, on December 21, 1937, when he fell and was injured. He tripped over some wooden blocks located on the sidewalk at a point about 5 feet from the hospital building line. The blocks, two in number, were wedge shaped, about 3 feet long, 8 or 10 inches wide and 8 or 10 inches high. Coal Company's truck drivers, after delivering the coal to the hospital on that date, had placed the blocks on the sidewalk. It was the duty of Coal Company's drivers to put the coal through a coal hole in the sidewalk and into the hospital's coal bin under the sidewalk. The sidewalk at that point was about 8 or 10 inches higher than the street at the curb. The coal hole was 7 feet from the curb line and 4 feet from the building line. In order to get the back end of the trucks over the coal hole, so that the coal could be dumped into the hole, Coal Company's drivers had used the blocks as ramps or runways, with the large end of the blocks against the curb, in order to back the trucks from the street level onto the sidewalk. There was no other way to get the trucks on or off the sidewalk at that point. The blocks had been on the hospital premises for a long time. Coal Company's drivers had used them on prior occasions in delivering coal to the hospital and so had the drivers for other coal companies. A maintenance man for the hospital had directed Coal Company's drivers to remove the blocks from the gutter, when they finished using them, and to place them on the sidewalk a few feet away from the coal hole and next to the building line. At the trial of the cause, wherein plaintiff recovered judgment against Coal Company, Coal Company's drivers testified that they complied with these directions. The last load of coal was delivered by Coal Company about 11:30 a.m. on December 21, 1937, and the unloading was completed 30 minutes later. The last truck then moved down over the wooden blocks to the street level and, after the blocks had been placed on the sidewalk, the trucks were driven away by Coal Company's employees.

In plaintiff's suit against Coal Company, the petition charged, plaintiff's main instruction submitted, and the jury found from the evidence that, at the time mentioned, there was in full force and effect an ordinance of the City of St. Louis, making it unlawful to place or throw upon any public sidewalk any article whatsoever so as to obstruct or otherwise encumber said sidewalk; that the Coal Company, its agents or servants, placed or threw the wooden blocks upon the sidewalk; that the blocks obstructed or encumbered the sidewalk; that, in so obstructing the sidewalk, Coal Company, its agents or servants, were negligent; and that, as a direct result of this negligence, the plaintiff was caused to fall and be injured. The jury, on April 15, 1941, returned a verdict in favor of the plaintiff and against Coal Company for $ 15,000, upon which judgment was entered and no appeal taken.

After the institution of the above damage suit, Coal Company notified garnishee and requested garnishee to defend the action under the terms and provisions of its policy, but the garnishee refused to undertake the defense of the suit, and Coal Company defended it in good faith at its own expense. When judgment was entered and had become final, Coal Company called upon the garnishee to pay all sums claimed to be due under the provisions of the policy. Garnishee contended that "there was no coverage under the . . . liability policy for said accident."

The automobile liability policy issued by garnishee to Coal Company contained the following applicable provisions:

"Declarations . . . Item 1. Name of insured, Fleming-Young Coal Company. Address, 2806 Market...