*1 COMPANY, Appellant, HARLEYSVILLE HOME INDEMNITY v. COMPANY, Respondent MUTUAL INSURANCE (2d) 819) (166 S. E. *2 Haynsworth, Messrs. Perry, Bryant, Marion & John- stone, Greenville, Appellant, for Leatherwood, Walker, Mann, Todd & of Green-
Messrs. ville, Respondent, *3 7, 1969.
April
Moss, Chief Justice. is one Declaratory Judg- action under the “Uniform of Laws. Act,” ments 10-2001 et Section Code seq., It is Home Indemnity Company, appellant brought by herein, Mutual Insurance Harleysville Company, against herein, a declaratory judgment the respondent seeking of determine which the insurers for an provided coverage on from an accident that occurred injury resulting Septem- 28, ber
The the insurer Marshall Farms appellant Cooper- tive under Liability General-Automobile Comprehensive and the insured policy, Marshall respondent under a similar Attached to the latter was an policy. policy endorsement excludes which under certain circumstances losses which arise out of a motor vehicle.
Marshall Enterprises was engaged busi- trucking ness whose function was to receive live chickens from various in South points Carolina and other states surrounding such to Marshall Farms at transport their of busi- in Greenville, ness Carolina, South where were they pro- 28, cessed for market. On September En- to the of Marshall terprises brought Farms a truck load chickens, the said truck operated by a being regular driver of Marshall He Enterprises. parked premises of Marshall Farms in an area for such designated to the left the according keys the truck requirements switch. The truck ignition driver then left the .pre- mises had further do with the truck. This nothing Thereafter, accord being with custom. a regular employee of Marshall Farms did move the truck to a station weighing owned where truck loaded with live chickens would be and then the truck would be driven to weighed area to be where were from they removed physically *4 truck, removed, the the chickens been so after had the then be taken to would back the sta- empty, weighing thereafter, and, tion a second time back to its parking place. The to two were order determine weighings necessary of chickens had been how delivered. many pounds 28, 1964, On both of while the aforesaid September poli- effect, in force and one Garrett Leroy cies were was injured struck as result truck owned Marshall being by by and which was an by being operated
of Marshall Farms. Garrett instituted suit against the Farms and Marshall seeking damages Enterprises, sustained, based negli- upon alleged personal in the of the aforesaid truck under gence operation Thereafter, heretofore outlined. there was an circumstances which settlement reached was by Garrett agreed paid one-half with each insurer $13,500.00, advancing sum of that each re- thereof, $6,750.00, with the understanding cover- all the other as who provided served rights against also for the The incurred damages. appellant expenses age in the sum of fees in the defense action attorney this action against Home instituted Indemnity $628.66. it to- recover the amount contributed Harleysville fees, and attorney the settlement plus expenses wards full under provided coverage that the respondent contending counterclaimed, inter contending The respondent its policy. no whatever and alia, sought it coverage that provided $6,750.00, in the amount of against appellant recovery the settlement. advanced towards amount being Honorable on for trial before The This case came James Court, and Price, County of the Greenville H. Jr., Judge written tried without a based jury, agreement, The lower court concluded and exhibits. stipulations and, no to Marshall Farms coverage afforded Harleysville on its counterclaim against rendered judgment accordingly, $6,750.00. Home Com- Indemnity Home amount aforesaid order and asserts from pany appealed to Marshall Farms. coverage does provide its policy contained following provisions: Harleysville’s policy To Liability. “1. Injury pay Coverage Bodily A— insured shall become all sums which the behalf of the insured bodily as because of injury, damages obligated pay legally * * * accident. and caused by by any sustained person [*] [*] in- ‘insured’ includes the named “The word unqualified * * B, A also under (2) coverages sured and includes owned or a hired automobile using while any person
457 automobile and any person organization legally respon- thereof, sible for the use use actual of provided the auto- mobile is the named insured or with his permission, Hs * *
[*] [*] [*] [*] * * “Use of an automobile includes the and unload- thereof.” ing two,
There are in theories to regard under the liability and clause “loading of a One unloading” liability policy. is called the to rest” “coming doctrine. Under this doctrine is a narrow “unloading” given construction and is held to extend to the actual of only the article from lifting the motor vehicle, vehicle to a of rest outside the place and con- nection of the vehicle with the of process has unloading ceased.
Under the doctrine, “complete operation” the “loading and covers unloading” clause the entire process involved of from the movement moment when goods are they into the given insured’s until are possession they turned of over at the destination to the to whom place party made, is to be and for all distinction practical purposes, any between and is not “loading” “delivery” considered. 95 A. L. R. 1129. (2d)
The effect of a “loading unloading” provision to the term simply “use vehicle” so expand will extend from the coverage commencement of until Truck Ins. completion unloading. Webb, v. 256 Exchange Cal. App. (2d) Cal. Rptr. In 791. interpreting all out policy coverage arising in accordance with unloading process complete operation doctrine if tests determine commenced are acts at time of whether accident were neces progress vehicle, to movement of from sary integral goods whether would have occurred but for need to move they whether were closely related time and goods, they vehicle, from to actual movement space goods McCloskey U. Companies, & Co. v. Allstate Ins. S. D. C. App. 177, 358 F. of a building Where contractor a concrete truck a third owned directing the construction where was party *6 concrete, and of a unload the second contractor of the on the when a wheel injured was working premises in some to scaffold truck became connected ropes engaged held in v. Royal he it was Pellicano working, which was 654, 259, Y. Co., 229 N. S. that Indem. 35 Misc. (2d) (2d) in- the of an the came within coverage employee’s contained “loading surance on the truck which policy not Even the insured had clause. vehicle though unloading” accident, the day its load on the of commenced to discharge of court, in sense the the the unloading “complete said the of the arrival commenced with doctrine operation” site. job the accident in a truck of Marshall to the question Prior its driven one of regular by employees, Enterprises, chickens, on the live was parked premises with loaded with chickens When a truck loaded live Farms. of Marshall Farms, of it was required arrived at in When an area therefor. designated such be that parked available, it the duty in area became unloading space Farms, of Marshall Dotson, regular employee Heyward and, thereafter, to scales for weighing truck to drive the It was this for unloading. during pro same in position while the injured struck and cess Garrett was Leroy that the said Dotson. Heyward by truck was being operated stated, that conclusion, hereinbefore our under the facts It is in at the time of the unloading process Dotson was engaged integral he was was an doing to Garrett. What injury closely of the and was necessary unloading process and part of the actual removal related in time and to the space truck. conclusion justified by ap chickens from the rule which inferenti we complete plication operation Outlaw, v. Em the case Wrenn & Inc. ally approved 97, Assurance 246 S. C. Liability Corporation, ployers’ S. E. (2d)
Harleysville’s liability contained an policy omnibus clause that the term providing “insured” includes the named in- sured and also other any while person using insured truck with the or consent of the permission insured. The omnibus clause extended to cover third parties engaged In the case of operations. Standard Oil Co. Co., Texas v. Ins. Tex. Transport Civ. S. W. App., was held under the Standard Automobile Liability Policy not provisions only covered the named insured but also anyone operating vehicle with the named insured’s permission “loading of the vehicle is such a unloading” use as permissive contemplated policy.
In a number of cases and un involving “loading clauses, loading” was caused injury negli vehicle, is, of a gence to the stranger *7 insured or the insured’s or servants. Where such agents is found to be stranger vehicle, or the loading unloading he will be covered as an additional generally insured within the of the omnibus the clause. Where meaning injury occurs while an of the or employee was direct consignor consignee or involved in or ing the loading act unloading operations, of such has been held to be generally “loading” or so that the of the “unloading,” liability tortfeasor was covered the on by the insured’s vehicle. Am. policy Jur. Insurance, 89, Automobile Section page that, is case,
It our conclusion under the facts of this the liability of Harleysville under the policy provided coverage clause omnibus insured and the clause unloading for the the reason that truck of Marshall at the time of the injury Garrett process being unloaded, unless its afforded no virtue policy coverage by of an endorsement attached to exclusionary policy. endorsement is follows: as is the insurance
“It for agreed Bodily Injury Liability does not Property Damage Liability to injury, apply sickness, disease, death or destruction which arises out of the automobile, if or of an the accident oc- adjoin- on the ways immediately
curs
(including
premises
or
owned,
or controlled either
by
rented
person
ing)
made
is
or
of the
whom claim
the employer
person against
sickness, disease, death or
for such injury,
suit is brought
limitation does not
with
apply
respect
destruction. This
insureds:
following
or suits
brought against
claims made
or,
is an
insured
if
named insured
the named
“(a)
household;
individual,
if a
his
resident
same
spouse,
of the automobile or an em-
or
bailee
borrower
“(b)
insured;”
named
them or of the
of either of
ployee
in which
received
that the
Garrett
accident
stiplated
It
or con-
rented
owned,
his
occurred
Farms,
whom the claim was
Marshall
against
trolled
clause
did
exclusionary
If
brought.
and suit was
made
thereof,
for in (b)
provided
not contain the provisions
However,
be
the limitation
liable.
would
Harleysville
does not
with re-
clause
in the exclusionary
apply
contained
or
the bailee
against
made
suits
brought
to claims
spect
It
thereof.
is the contention
or an employee
the automobile
a bailee.
Farms was
of Home
as the
of chattel
Bailment has been defined
a con
or
some express
particular purpose
that, after the
tract,
purpose
express
implied,
shall be redelivered to
fulfilled,
then
chattel
bailor,
to his
or otherwise dealt with
directions.
according
Here,
Hurst,
Insurers have their liabilities and right conditions their they whatever please impose in are not contraven they obligations, provided Accord- inhibition or statutory tion of some public policy. in clause an insurance contract ingly, restricting liability under certain conditions is valid. excluding coverage Co., Rhame v. Nat’l. Mut. Ins. S. C. Grange Here, S. E. in the exclusion Harleysville’s policy for out of the and un bodily injury liability, arising loading of an does not automobile with apply respect claims made or suits of the automo a bailee brought against Here, bile. of the en language exclusionary express dorsement renders it inapplicable.
The of the are sustained and the exceptions appellant of the court is and the re- lower reversed case judgment in manded thereto so that be entered favor may judgment of Home Indemnity Company.
Reversed remanded. Littlejohn, Lewis and concur. JJ., Bussey JJ., Brailsford, in concur result.
Brailsford, (concurring): Justice I concur in the result reached Chief How- Justice. ever, I would at in arrive this conclusion one instead step I two. see no and unload- necessity invoking clause, which turn makes a construction of ing necessary clause to these At the exclusionary relating procedures. accident, time of the the truck was actually engaged of its to scales on the The cargo transportation premises. accident was collision between ordinary injury-producing vehicle and use moving pedestrian. of the insured and fastens was with the liability permission the insurer. It is beside the whether the trans- point of the chickens to the scales was also the com- portation To as has fre- say, mencement of the unloading process. done, that “(u)nder ‘complete operation’ quently the entire doctrine, clause covers ‘loading unloading’ from the moment involved the movement goods process are into the insured’s until they they when given possession are turned over at the of destination to the party * * *” whom made should be to be applied *9 is meant is that an insurance con- actually What
literally. tract, clause, including provides from the time coverage during complete operation is until the insured takes goods possession made.
“The unloading’ phrase ‘including extension, be one of expanding generally recognized its ‘use of the truck’ connotation beyond expression or acts which the otherwise and covering operations * * *” of the truck itself does movement play part, Insurance, Automobile Sec. 87. 7 Am. Applica- (2d) Jur. here where the truck tion of the clause is inappropriate view, in the accident. In this my motion was involved Hence, Harleysville use case. provided coverage. simple J.,- Bussey, concurs. Smith, Jr., SMITH, Sr., J. D.
J. D. as Administrator of the Estate of WINNINGHAM, Appellant, Salisbury Respondent v. A. Maxine 825) E. (166 S.