355 Mass. 211 | Mass. | 1969
The bill seeks declaratory relief and to require Lumbermens Mutual Casualty Company (Lum-bermens) to reimburse F. W. Woolworth Company (Woolworth) and Travelers Insurance Company (Travelers) for part of the sums paid by Woolworth and Travelers in settlement of a claim by Edith Ervin. Lumbermens had issued a motor vehicle liability insurance policy to its insured, Hopkins Transportation, Inc. (Hopkins). The trial judge made findings, which were adopted by him as a report of material facts. By final decree it was declared that the accident to Miss Ervin “was caused by and arose out of the use and unloading of the truck” of Hopkins by Woolworth and its employees Pisoni and Pillsbury. Lumbermens was ordered to pay $3,566.66 each to Woolworth and Travelers with interest. Lumbermens appealed, as did Woolworth, Pisoni, Pillsbury, and Travelers. The evidence is reported.
1. Lumbermens first contends that all unloading had ceased when Miss Ervin was injured. The trial judge found “as a fact that the unloading had not [then] ceased.” His subsidiary findings, summarized below, concerning what had happened are justified by the evidence.
Woolworth operated a store in Arlington. Travelers had issued a public liability policy covering the premises. This was in effect on February 5, 1959, when Miss Ervin was injured. On that day Leo Lanza, a driver employed by Hopkins, was delivering merchandise to the Woolworth store in Hopkins’s duly registered truck. Lanza was alone on the truck. He stood his truck near the curb, parallel with the store. The rear end of the truck was near a chute. Lanza went into the store and called for someone to receive the merchandise. He then returned to his truck, and put the merchandise on the tailgate of his truck. He placed
Pillsbury, the store manager, had previously gone with Pisoni to the sidewalk to receive the merchandise, but had been called to the telephone. The merchandise from the truck was in the area between the chute and the curb in the immediate area of the store. Some bundles had already been thrown down the chute when Miss Ervin fell. Some remained on the sidewalk. After Lanza received the money for the delivery, he returned to his truck and did nothing further with the bundles.
Lumbermens’ motor vehicle policy, issued to Hopkins, insured under coverage B the liability arising out of “ownership, maintenance, or use of the motor vehicle.”
We apply the principles stated in August A. Busch & Co. of Mass. Inc. v. Liberty Mut. Ins. Co. 339 Mass. 239, 241-243, in deciding whether this accident was covered at all, under the “unloading” provisions applicable to coverage B of Lumbermens policy. In the Busch case, we held that a somewhat similar policy was intended to extend the coverage of “use of the . . . vehicle” to include “unloading” in the sense of (p. 242) “delivery to the . . . consignee rather than the more restricted doctrine that the unloading has ended when the goods have come to rest.” We adopted the so-called “complete operation” rule and rejected the “coming to rest” doctrine, but we said (at p. 243) that for Busch, the insured hirer of the vehicle there unloaded, “unloading would mean a continuous transaction ending with the deposit of the goods in the hands of the purchaser.” In the Busch case, Busch's employees, when the accident happened (p. 241), were still in the consignee's cellar putting cartons “into an ice chest, with the assistance of two employees of another brewer who were preparing to deliver . . . beer through this same side door and trap door.” They were still participating in the unloading process, whereas in the present case Lanza had completely finished all work in which he had participated at all or apparently was expected to participate. He had obtained a signed receipt and had been paid. He had no part in removing the merchandise from the tailgate, in placing it on the sidewalk, or in throwing it down the chute. So far as appears, he had nothing left to do except to remove the Hopkins truck from the curb.
Later Massachusetts cases do not shed much light op when unloading comes to an end. In Nichols & Co. Inc. v. Travelers Ins. Co. 343 Mass. 494, 496-498, the policy issued
The authorities are not uniform. See Appleman, Insurance Law and Practice (1962) §§ 4322-4324, 4354.
We apply the language of the Busch opinion, 339 Mass. 239, 243, that unloading means “a continuous transaction ending with the deposit of the goods in the hands of the purchaser.” In the present case, if Hopkins’s employee Lanza had been doing what Pisoni was doing when the accident took place, we assume that he would have been covered by the Lumbermens’ policy. In the circumstances, however, we conclude that Pisoni, Pillsbury, and Woolworth were not covered because they, in effect, had accepted responsibility for the goods and no longer could be said to have been using the truck, after Woolworth’s employees had placed the merchandise on the sidewalk. The trial judge’s conclusion that unloading had not ceased was not justified by his subsidiary findings or by the evidence.
2. There is no occasion for discussing other issues.
3. The final decree is reversed. A new final decree is to be entered declaring that Lumbermens is not liable for Miss Ervin’s injuries. Lumbermens is to have costs of appeal.
So ordered.
Under coverage B (emphasis supplied), “the unqualified word ‘insured’ includes the named insured . . . and also . . . any person while using the motor vehicle and any person . . . legally responsible for the use thereof, provided the actual use ... is by the named insured ... or with the permission” of the named insured.
Oases not imposing liability include: Pavlik v. St. Paul Mercury Ins. Co. 291F. 2d 124,126 (7th Cir.); San Fernando Valley Crane Serv. Inc. v. Travelers Ins. Co. 229 Cal. App. 2d 229, 236. Cases imposing liability include: Connecticut Indem. Co. v. Lee, 168 F. 2d 420, 425 (íst Cir. — opening of elevator doors by truck driver); St. Paul Mercury Ins. Co. v. Huitt, 336 F. 2d 37, 42-44 (6th Cir.); Allstate Ins. Co. v. Valdez, 190 F. Supp. 893, 894-897 (D. Mich.); Lamberti v. Anaco Equip. Corp. 16 App. Div. 2d (N. Y.) 121, 124-126; Lowry v. R. H. Macy & Co. Inc. 119 N. Y. S. 2d 5, 8-9 (Supr. Ct.); Bobier v. National Cas. Co. 143 Ohio St. 215; Pacific Auto Ins. Co. v. Commercial Cas. Ins. Co. 108 Utah, 500, 511. Cf. Travelers Ins. Co. v. Buckeye Union Cas. Co. 172 Ohio St. 507, 514-515.