State Compensation Ins. Fund v. Bankers Indem. Ins. Co.

• Decision Date: 22 September 1939
• Docket Number: No. 9074.,9074.
• Citation: 106 F.2d 368
• Parties: STATE COMPENSATION INSURANCE FUND et al. v. BANKERS INDEMNITY INSURANCE CO.
• Court: U.S. Court of Appeals — Ninth Circuit

106 F.2d 368 (1939)

STATE COMPENSATION INSURANCE FUND et al. v. BANKERS INDEMNITY INSURANCE CO.

No. 9074.

Circuit Court of Appeals, Ninth Circuit.

August 11, 1939.

Rehearing Denied September 22, 1939.

C. S. Bucher, Keith & Creede, Gordon S. Keith, Frank J. Creede, and Percy J. Creede, all of San Francisco, Cal., for appellants.

Charles B. Morris and Leo J. McEnerney, both of San Francisco, Cal. (J. Bruce Fratis and Julius M. Keller, both of San Francisco, Cal., of counsel), for appellee.

Before GARRECHT, HANEY, and STEPHENS, Circuit Judges.

GARRECHT, Circuit Judge.

On the 25th day of February, 1933, John J. Dalton entered into an oral agreement with the County of Alameda, State of California, whereby he was to furnish an automobile truck with a driver and do work on Grizzly Peak Road No. 1. This work was to consist in hauling dirt back and forth to and from certain locations on the job. In addition to the truck with driver, Dalton was to furnish gas and oil and exhibit a policy providing for public liability insurance. Dalton was to be paid $1.50 per hour for 7 hours per day, half an hour of this time was allowed for going from the camp to the place where the work was to be done and taking with him about 20 men, and half an hour for bringing them back to the camp at night. He was to report to and work under the direction of Superintendent Pixley in charge of the work for the County.

On the Sunday evening before February 27, 1933, Dalton drove his truck to the camp from which he was to begin work the next day. On the following Monday morning Dalton reported to Pixley, who instructed him to pick up some men and take them up to Grizzly Peak Road. He further directed Dalton that after arrival at the place of work he was to put in his time hauling dirt. Dalton followed these instructions and was engaged in hauling dirt back and forth until about 3:30 in the afternoon when the foreman under Pixley directed him to bring the men he had taken up in the morning back down to the camp. He obeyed these instructions and was returning with these workingmen to the lower camp when he lost control of the truck which resulted in the deaths of Jesse Bradley and John Adam Corrick and in personal injuries to Leonard Clark, Frank Haberkam, Ernest Burbank, Dudley de Leon, D. A. Barek, H. Coneff, Howard Cason, John Maillet and Claude de Vold. Each of said persons were being transported by said Dalton in his automobile truck under and pursuant to the agreement entered into between him and the County of Alameda.

The State Compensation Insurance Fund insured the County of Alameda for its liability under the Workmen's Compensation Laws and as a result of the injuries and deaths it paid death benefits to the widows of Bradley and of Corrick (the amount of the Bradley benefit, the only one appearing in the pleadings herein, being $1,150) and paid certain sums to and for Clark, and an additional sum of $404.97 to and for the other injured men.

Thereafter, the State Compensation Insurance Fund commenced an action in the Superior Court of the State of California, County of Alameda, against John Dalton in behalf of itself and in behalf of the widow and minor child of Jesse Bradley for the damages arising from the death of Bradley. A trial of this action resulted in a judgment in favor of the plaintiff and against Dalton in the sum of $7,500 (under Section 26, Workmen's Compensation Act of the State of California, Stat. of Calif. 1917, Chapter 586 as amended, any amount collected by said plaintiff in excess of the expenditures would be paid to Mrs. Bradley and her child). This judgment was sustained on appeal to the District Court of Appeal of the State of California (see State Compensation Insurance Fund v. Dalton, 13 Cal.App.2d 284, 56 P.2d 962) and the Supreme Court of the State of California denied rehearing.

Thereafter a trial in an action brought by Mrs. Corrick resulted in a judgment in her favor and against Dalton in the sum of $6,000; Leonard Clark recovered judgment in his action against Dalton in the sum of $4,000; and State Compensation Insurance Fund recovered a separate judgment against Dalton in the sum of $404.97 in its action for its expenditures to and for the several men who received minor injuries.

Executions were issued on each of these judgments which later were returned unsatisfied; thereupon the actions here involved were commenced.

State Compensation Insurance Fund first filed its action in the Superior Court of the State of California against appellee, Bankers Indemnity Insurance Company, alleging that the latter had issued an insurance policy to John J. Dalton, which policy required appellee to satisfy any judgment recovered against Dalton for liability arising out of damages caused by himself and his truck on February 27, 1933. Later, similar actions were commenced on the other judgments recovered by appellants. All of these actions were removed by appellee to the District Court of the United States for the Northern District of California, Southern Division. Thereafter, appellee filed an amended answer and cross-complaint for declaratory relief. All the actions were in effect consolidated.

The following are pertinent provisions of the liability insurance policy involved on this appeal:

"Bankers Indemnity Insurance Company * * * In Consideration of the Premium Hereinafter Provided and of the Declarations Forming a Part Hereof Does Hereby Agree with the Assured subject to the Exclusions herein and the Conditions printed on the second page of this policy:

"(1) To Pay on behalf of the Assured All Sums (within the limits as expressed in the Declarations) which the Assured shall become obligated to pay by reason of the liability imposed by law upon the Assured for damages, including consequential damage resulting from loss of services and expenses, arising out of bodily injuries, and/or death resulting therefrom, accidentally suffered, or alleged to have been suffered, by any person or persons, by reason of the ownership, maintenance and/or use of any of the automobiles described in said Declarations (including carrying of goods thereon and the loading and unloading thereof);

* * * * * *

"Exclusions

"The Company shall not be liable under this Policy for * * * claims arising from the use of any automobile for purposes other than those specified in the Declarations.

* * * * * *

"Basis of Premium

"A. The premium is based upon the number and character of the automobiles and the uses to which same are to be put as described in the Declarations herein.

* * * * * *

"Declarations

"1. Name of Assured: John J. Dalton.

* * * * * *

"4. The business of the Assured is Hauling dirt for City of Oakland.

* * * * * *

"9. The purposes for which the described automobiles are and will be used are: Commercial use.

* * * * * *

"(b) The term `Commercial' when used is defined as usual to the business of the named Assured as described above including loading and unloading of goods.

"10. None of the insured automobiles are or will be rented to others, except as follows: No Exceptions.

"11. None of the insured automobiles are or will be used to carry passengers for a consideration, actual or implied, except as follows: No Exceptions."

In addition to the foregoing provisions contained in the general policy, there is annexed to the policy an endorsement which provides for the amendment of the policy to conform with the requirements of Chapter 259, California Laws of 1929, and laws supplementary thereto. An excerpt from said endorsement reads as follows:

"California Financial Responsibility Act Endorsement

"The Policy to which this endorsement is attached is amended to conform with the requirements of Chapter 259, California Laws of 1929, and all laws amendatory thereof or supplementary thereto which may be or become effective while this Policy is in force, as respects any liability for bodily injury or death or liability for property damage covered by this Policy, but only to the extent of the coverage and the limits of liability required by said Chapter and only with respect to the motor vehicles disclosed in the Policy.

"It is further agreed that to the extent of the coverage required by said Chapter and within the limits stated in said Chapter, this Policy is subject to the following additional provisions:

"(a) The Liability of the Company under this Policy shall become absolute whenever loss or damage covered by the Policy occurs, and the satisfaction by the Assured of a final judgment for such loss or damage shall not be a condition precedent to the right or duty of the Company to make payment on account of such loss or damage. Upon the recovery of a final judgment against the Assured for any such loss or damage the judgment creditor shall be entitled to have the insurance provided by this endorsement applied to the satisfaction of the judgment.

* * * * * *

"(c) It is further provided that the Assured or any other person covered by the Policy shall reimburse the Company for payments made on account of any accident, claim or suit involving a breach of the terms, provisions or conditions of the Policy, which payments the Company would not have been obligated to make under the provisions of the Policy independently of this endorsement or of the provisions of said Chapter."

Upon stipulation the cause was tried by the court sitting without a jury. At the conclusion of the evidence appellants made a motion for judgment and also requested special findings of fact and declarations and conclusions of law. The court found for appellee and made findings of fact and conclusions of law and judgment thereon was entered in favor of appellee and against all appellants. From this judgment comes this appeal.

The questions presented concern no factual conflict, but involve the legal effect of the evidence and the proper construction of the terms of the contract of insurance and of certain statutes of the State of...