St. Paul Mercury Indem. Co. v. Standard Acc. Ins. Co.

• Court: Minnesota Supreme Court
• Writing for the Court: The opinion of the court was delivered by: Peterson
• Citation: St. Paul Mercury Indem. Co. v. Standard Acc. Ins. Co., 216 Minn. 103, 11 N.W.2d 794 (Minn. 1943)
• Decision Date: 19 November 1943
• Docket Number: 33473.
• Parties: ST. PAUL MERCURY INDEMNITY CO. v. STANDARD ACCIDENT INS. CO.

11 N.W.2d 794

216 Minn. 103

ST. PAUL MERCURY INDEMNITY CO. v. STANDARD ACCIDENT INS. CO.

No. 33473.

Supreme Court of Minnesota

November 19, 1943

Syllabus by the Court.

An 'unloading' clause in an automobile liability policy covers removal of goods from an automobile, but not subsequent handling and transportation incidental to delivery of the goods to their destination.

Sexton Mordaunt, Kennedy & Carroll, of Minneapolis, for appellant.

Gillette & Meagher, of Minneapolis, for respondent.

PETERSON Justice.

Both plaintiff and defendant are insurance companies. Each through the same insurance agency issued a liability policy to the Northwestern Terminal Company of Minneapolis. An accidental injury occurred to one Brooks, who brought an action against the insured to recover for personal injuries. Plaintiff undertook the defense and subsequently settled the action. It took an assignment of the insured's rights against defendant. As assignee and subrogee of the insured plaintiff, claiming that the policy issued by defendant covered the accidental injury to Brooks, sues to recover from defendant the amount expended in defense and settlement of the Brooks action.

On September 29, 1939, the insured was engaged in St. Paul in moving office furniture and equipment from a government building to the so-called old telephone building. The moving job included taking the property from the offices where it was used in the government building and delivering it to the offices in the telephone building where it was to be used. In doing this work the insured used three crews of men, several automobile trucks, dollies, hand trucks, and a ramp. The work was divided into as many parts as there were crews. The first crew was employed at the government building to take the property from the offices and to place it on the tail-gates of the trucks which were backed against the curb on the street. The second crew consisted of a driver and helper on each truck, who took the property from the tail-gate, arranged the load on the truck, drove the truck to the telephone building, where the truck was backed against the curb, and there placed the property on the tail-gate. The third crew was employed at the telephone building. Its work consisted of taking the property from the tail-gates of the trucks, placing it on the sidewalk, and then moving it into the several offices in the building where it was to be ultimately delivered.

The telephone building was several stories high. The elevators therein were used to get the property to the upper floors. The first floor of the building, where the elevators were loaded, was from four to seven steps above the level of the sidewalk. In order to reach the first floor, a plank ramp was laid over the stairs. The property moved was placed on dollies and hand trucks on the sidewalk, which were pushed up the ramp by the men and taken to the elevators for transportation to the upper floors. The dollies and hand trucks were part of the insured's general equipment but they were not part of any truck or its equipment.

The ramp was the property of the Murphy Transfer Company, which was engaged at the time in a general moving job into the building apparently much more extensive than the insured's. The insured procured the use of the ramp from Murphy. The ramp extended from the first floor out of the building upon the sidewalk to a point five or six feet from the truck. There was no physical connection between the ramp and the truck. On the day in question, Brooks, who was employed in the building, in leaving at the end of the day, used the ramp, as he had done previously when Murphy only used it, to descend from the first floor to the street. A plank tilted causing him to fall, as a result of which he sustained physical injuries. At the time of Brooks' injury there was no activity on the ramp by any of the insured's employes. None of its equipment was in motion. There is some conflict in the testimony as to whether or not there was any furniture and equipment on the sidewalk. There was at the time no motor truck at the curb. A truck which had just been unloaded was in the act of pulling away.

The policy which plaintiff issued to the insured was known as a 'comprehensive liability policy' in which the coverage was classified as 'all operations incidental to assured's business.' By its terms it covered bodily injuries 'by reason of' 'assured's business or work' and 'the ownership, maintenance or use of the premises and equipment of the Assured by the Assured in the conduct of Assured's business or work.' There was an exclusion of bodily injuries 'caused while off the premises [of the assured] by any * * * automobile' or 'motor driven vehicle * * * owned or used by the Assured or caused by the loading or unloading thereof.'

The policy issued by defendant covered any loss arising out of the ownership, maintenance, or use of the automobiles, including the loading and unloading thereof.

The question for decision is whether 'unloading' an automobile as used in defendant's policy comprehends not only removing goods therefrom at the point of their destination but, in addition, the subsequent moving of the goods to the place in the building where the insured had agreed to deliver them and the use of any instrumentalities incidental to such moving subsequent to removal of the goods from the automobile.

Judgment below, from which defendant appeals, was that defendant was liable upon the ground that its policy covered Brooks' injury.

'Unloading' a vehicle means to remove goods therefrom and does not comprehend any further handling or movement thereof. In Franklin Co-op. Creamery Ass'n v. Employers' L. A. Corp., Ltd., 200 Minn. 230, 273 N.W. 809, we held that unloading a milk wagon was completed when the milk was removed therefrom; that distribution of the milk began when the driver, after the milk was unloaded, took it into a building to deliver it to the customers for whom it was intended; and that 'unloading' as used in a public liability policy indemnifying the milk company for injuries resulting from the ownership, maintenance, use, and operation of its horse-drawn milk wagons, including the 'unloading' thereof, covered the removal of the milk from the wagon by the driver but not the subsequent distribution thereof by him to the company's customers in the building.

The word 'unloading' has received the same construction in cases involving automobile liability insurance policies. American Cas. Co. v. Fisher, 195 Ga. 136, 23 S.E.2d 395; Zurich General A. & L. Ins. Co., Ltd., v. American Mut L. Ins. Co., 118 N.J.L. 317, 192 A. 387; Handley v. Oakley, 10 Wash.2d 396, 116 P.2d 833; and Stammer v. Kitzmiller, 226 Wis. 348, 276 N.W. 629. In Stammer v. Kitzmiller, it appeared that the driver parked the insured's truck alongside the curb; that he removed a barrel of beer therefrom; that he then opened a hatchway, through which he put the barrel into the customer's basement; that he left the hatchway open while he went in to have the customer sign a receipt for the beer; and that plaintiff was injured by falling through the open hatchway. The court held that unloading of the beer was completed when the barrel was removed from the truck and that unloading did not include the subsequent use of the hatchway even though it may have been convenient in completing delivery of the beer. Citing Franklin Co-op. Creamery Assn. v. Employers' L. A. Corp. Ltd., supra, the court said (226 Wis. at page 352, 276 N.W. at page 631): 'When the goods have been taken off the automobile and have actually come to rest; when the automobile itself is no longer connected with the process of unloading; and when the material which has been unloaded from the automobile has plainly started on its course to be delivered by other power and forces independent of the automobile and the actual method of unloading, the automobile then may be said to be no longer in use. The...