State ex rel. Butte Brewing Co. v. District Court of Second Judicial Dist. in and for Silver Bow County

• Court: Montana Supreme Court
• Writing for the Court: ANGSTMAN, Justice.
• Citation: State ex rel. Butte Brewing Co. v. District Court of Second Judicial Dist. in and for Silver Bow County, 100 P.2d 932, 110 Mont. 250 (Mont. 1940)
• Decision Date: 11 March 1940
• Docket Number: 8062.
• Parties: STATE ex rel. BUTTE BREWING CO. et al. v. DISTRICT COURT OF SECOND JUDICIAL DIST. IN AND FOR SILVER BOW COUNTY et al.

100 P.2d 932

110 Mont. 250

STATE ex rel. BUTTE BREWING CO. et al. v. DISTRICT COURT OF SECOND JUDICIAL DIST. IN AND FOR SILVER BOW COUNTY et al.

No. 8062.

Supreme Court of Montana

March 11, 1940

Proceeding by the State of Montana, on the relation of the Butte Brewing Company and another, against the District Court of the Second Judicial District of the State of Montana, in and for the County of Silver Bow, and T. E. Downey, one of the Judges of said court, for a writ of supervisory control.

Writ denied and proceeding dismissed.

Meyer & Meyer, of Butte, for respondents.

ANGSTMAN Justice.

This is an application for a writ of supervisory control. The facts involved are these:

Richard T. McCulloh brought an action in the district court of Silver Bow county against the Butte Brewing Company for personal injuries. The brewing company requested the Standard Accident Insurance Company, hereinafter referred to as the insurance company, and the Occidental Indemnity Company, hereinafter referred to as the indemnity company, to defend the action which they were obligated to do if their respective policies hereinafter referred to, covered the case; both declining to do so, an action was instituted in the district court of the above named county by the brewing company against both the insurance and the indemnity company under the Uniform Declaratory Judgments Act (secs. 9835.1 to 9835.16 Rev.Codes), to have determined whether the defendants therein, or either of them, were liable to defend the McCulloh action. The district court overruled a demurrer to the complaint interposed by the insurance company and sustained a demurrer to the complaint interposed by the indemnity company. This proceeding is to determine the correctness of the lower court's ruling.

It appears that McCulloh was injured in the following manner: On May 3, 1938, the brewing company was engaged in delivering a barrel of beer to a place known as "Clifford's" at 11 East Broadway in the city of Butte. The beer was about to be delivered into the basement through certain hinged doors in the sidewalk. On the day in question the beer had been taken from the brewing company's truck and placed upon the sidewalk. As plaintiff was walking along the sidewalk one of the servants of the brewing company, without warning to McCulloh, lifted the doors from underneath the sidewalk preparatory to lowering the beer into the cellar through the door. The door was lifted just as McCulloh stepped on it, and as a result he was injured.

The brewing company held two policies of insurance--one issued by the insurance company and the other by the indemnity company. The insurance company's contract was dated January 10 1938, and the indemnity company's January 19th. In general, the insurance company's contract obligated it to pay, amongst other coverages not here material, any damages imposed upon it by law because of bodily injury "sustained by any person or persons, caused by accident and arising out of the ownership, maintenance or use of the automobile" specifically described in the policy.

The policy provided that the automobile was to be used for commercial purposes and contained this provision: "(b) The term 'commercial' is defined as the transportation or delivery of goods, merchandise or other materials, and uses incidental thereto, in direct connection with the named insured's business occupation as expressed in Item 11 of the declarations." The policy also specifically provided that "Use of the automobile for the purposes stated includes the loading and unloading thereof." The truck in question was covered by the policy.

The policy of the indemnity company obligated it to pay to the brewing company all sums for which it should become liable as damages imposed by law for bodily injuries, including loss of services or expense resulting therefrom, accidentally suffered by any person or persons not excluded in the policy, while within or upon the premises described as 214-304 North Wyoming Street, Butte, or "while elsewhere if caused by the conduct of the business operations of the Assured" described in the policy as Breweries--including bottling. It expressly provided "that the company shall not be liable in respect of bodily injuries or death ***. 5. Caused by *** any motor or other vehicle owned or used by the Assured or by any person while engaged in the maintenance or use of same, including the loading or unloading thereof elsewhere than within or upon the premises owned by or under the control of the Assured, including the sidewalks or ways immediately adjacent thereto."

The precise question before us is whether the complaint by the brewing company against the insurance company and the indemnity company states facts sufficient to constitute a cause of action against each of the companies.

We shall first consider the sufficiency of the complaint as against the insurance company. In addition to the facts above recited, the complaint alleges that after the automobile had reached the point on East Broadway where the barrel of beer was to be delivered, it came to a full stop, and in connection with the operation of unloading and delivering, the barrel of beer together with a rope intended to be used to facilitate lowering the barrel from the sidewalk through the iron doors into the basement were removed from the truck and placed upon the sidewalk; that "thereupon one of the plaintiff's employees removed from said automobile another package of merchandise and carried it across the street for delivery to another customer;" that the other employee of plaintiff immediately thereafter preparatory to lowering the beer into the basement, entered the customer's place of business at 11 East Broadway, proceeded to the basement and unfastened a lock under the iron doors and raised a part or portion of one of the doors above the level of the sidewalk as McCulloh was about to step on it, thereby causing the injuries to him.

The insurance company contends that under the facts alleged which must be accepted as true for the purpose of the demurrer, the use...