Travelers Ins. Co. v. Employers Cas. Co., A-9808

• Decision Date: 17 June 1964
• Docket Number: No. A-9808,A-9808
• Citation: 380 S.W.2d 610
• Parties: The TRAVELERS INSURANCE COMPANY, Petitioner, v. EMPLOYERS CASUALTY COMPANY, Respondent.
• Court: Texas Supreme Court

Page 610

380 S.W.2d 610

The TRAVELERS INSURANCE COMPANY, Petitioner, v. EMPLOYERS CASUALTY COMPANY, Respondent.

No. A-9808.

Supreme Court of Texas.

June 17, 1964.

Rehearing Denied July 15, 1964.

Gay & Meyers, Austin, for petitioner.

Leachman, Gardere, Akin & Porter and Gordon H. Rowe, Jr., Dallas, for respondent.

WALKER, Justice.

This controversy between two insurance companies arises out of an accident in which three employees of M. Z. Collins lost their lives. Collins was the general contractor for the construction of a new high school in Austin, and Borders Steel Erection Company was one of the subcontractors. Mixed concrete for the job was furnished to Collins by Capitol Aggregates, Inc. The workmen were killed when a crane owned and operated by Borders collapsed while it was being used to transport concrete from Capitol's ready-mix concrete truck to the concrete forms of the general contractor.

Employers Casualty Company was the automobile insurer of Capitol, and The Travelers Insurance Company was the general liability insurer of Borders. Travelers paid the beneficiaries of the deceased workmen a total of $61,020.30 in settlement of their claims, and then brought this suit against Employers to establish the latter's liability for the amount of the settlement plus attorney's fees and expenses of investigation. The case was tried to the court without a jury, and judgment was rendered that Travelers take nothing. No findings of fact or conclusions of law were filed or requested.

The judgment of the trial court was affirmed by the Court of Civil Appeals at Dallas, which held that the accident did not arise out of the unloading of the truck within the meaning of the policy issued by Employers. 370 S.W.2d 105. A similar conclusion had previously been reached by a majority of the Court of Civil Appeals at Austin in the appeal from the order sustaining Employers' plea of privilege. Travelers Ins. Co. v. Employers Casualty Co., Tex.Civ.App., 335 S.W.2d 235 (writ ref. n. r. e.). On the basis of the authorities cited by the parties at that time, it was then our opinion that the policy issued by Employers did not protect Borders. In view of our refusal to grant a writ of error in the earlier appeal, the Court of Civil Appeals at Dallas naturally felt it was bound by that decision. Upon further consideration and in the light of the additional authorities now cited by the parties, we have concluded that Borders was covered by the automobile liability policy under the facts of this case.

The policy issued by Employers to Capitol contains the following provisions:

'I. Coverage A. Bodily Injury Liability. To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, caused by accident and arising out of the ownership, maintenance or use of any automobile.

'III. Definition of Insured. The unqualified word 'insured' includes the named insured and also includes 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 * * *.

'IV. Purposes of Use Defined. (a) The term 'pleasure and business' is defined as personal, pleasure, family and business use. (b) The term 'commercial' is defined as use principally in the business occupation of the named insured as stated in the declarations including occasional use for personal pleasure, family and other business purposes. (c) Use of an automobile includes the loading and unloading thereof.'

Employers thus agreed to pay on behalf of any person loading or unloading the truck with the consent of Capital all sums which such person might become legally obligated to pay as damages because of bodily injury, including death at any time resulting therefrom, caused by accident and arising out of the loading or unloading of the truck. The question to be decided then is whether the deaths of the three workmen arose out of the unloading of the truck within the meaning of the policy.

The courts of other jurisdictions are not in agreement as to what is covered by the 'loading and unloading' clause of an automobile liability policy. According to the minority view, loading begins when the transported object has been brought into the immediate vicinity of and is being physically carried or lifted into the vehicle, and unloading ends when the object reaches a place of rest and is no longer being carried or lifted off the vehicle. This is generally referred to as the 'coming to rest' rule. 'The broader construction, adopted in a majority of the jurisdictions which have passed upon the question, is that 'loading and unloading' embrace, not only the immediate transference of the goods to or from the vehicle, but the 'complete operation' of transporting the goods between the vehicle and the place from or to which they are being delivered.' See Wagman v. American Fidelity & Casualty Co., 304 N.Y. 490, 109 N.E.2d 592. See also Risjord, Loading and Unloading, 13 Vanderbilt Law Rev. 903; Annotation, 160 A.L.R. 1259. The foregoing statmeents of the two opposing views are subject to certain qualifications in particular cases, but with this reservation we approve and adopt the majority rule as representing the prior approach to a determination of the coverage afforded by the clause in question. See American Employers' Ins. Co. v. Brock, Tex.Civ.App., 215 S.W.2d 370 (writ ref. n. r. e.).

Turning now to the specific problem presented here, ready-mix concrete must be used within thirty minutes to an hour after it is discharged from the truck. Unlike steel or brick it cannot be stored at the construction site indefinitely, and for that reason is ordered as needed and must be placed in the forms promptly. In the present case Capital sent its ready-mix concrete trucks to the general contractor at the site where the new high school was being constructed. Where it was possible to do so, the trucks were driven up to the concrete forms and the concrete was emptied directly into the forms. When the forms were inaccessible, the concrete was emptied into the contractor's bucket or into a conveyor system and transported to the forms in that manner. On the occasion when the three men were killed, Capitol had delivered some ready-mix concrete to the construction site and the same was being unloaded from the truck and carried to the forms by means of a bucket attached to Borders' crane. After the contents of one of the trucks had been emptied into the bucket and while the crane was moving the bucket filled with concrete toward the forms, the crane buckled and fell, inflicting the fatal injuries.

There are four decisions by trial and intermediate appellate courts of other jurisdictions involving the unloading of ready-mix concrete trucks. Two of them were on facts substantially similar to those outlined above, and in both it was held that the crane operator was covered by the liability policy on the truck. Lamberti v. Anaco Equipment Co., 16 A.D.2d 121, 226 N.Y.S.2d 70; St. Paul Mercury Ins. Co. v. Huitt, D.C.Mich., 215 F.Supp. 709. Our study of these cases convinces us they are correctly decided and should be followed in so far as they deal with the problem now under consideration. See also Pavlik v. St. Paul Mercury Ins. Co., 7th Cir., 291 F.2d 124; Travelers Ins. Co. v. General Casualty Co., D.C.Idaho, 187 F.Supp. 234. As pointed out by the court in Lamberti:

'The respondent contends that the place of delivery was the bucket of the crane and, therefore, the unloading operation was completed when the concrete had been placed in the bucket. We cannot agree. The bucket cannot be considered 'the place * * * to which' the concrete was being delivered. It was merely the necessary conduit by which the concrete was conveyed...