443 P.2d 977 | Colo. | 1968
Opinion by
This is an action for damages resulting from the alleged wrongful death of Russell Rooks, hereinafter referred to as Rooks. The plaintiffs, herein referred to as such, are the widow and two sons of Rooks. Reference is made to the other parties as follows: Northwestern Engineering Company as Northwestern, Western Casualty and Surety Company as Western Casualty, and John Sheets as Sheets.
Northwestern was engaged in highway construction near Durango, Colorado. It had ordered concrete pipe from a supplier and had instructed it to include a pipe hook with the shipment. The pipe was delivered to the job site by Kerr Truck Company, hereinafter referred to as Kerr, on Kerr’s truck driven by Rooks, Kerr’s employee. The pipe was to be unloaded with Northwestern’s crane, which at the time of the arrival of the pipe
Sheets, Northwestern’s crane operator, rotated the cab and boom in order to place the boom in position for unloading. As the boom approached the men working on the hook, Rooks took a few steps toward the crane cable, and grabbed it. By that time the boom had come in contact with a power line and Rooks was electrocuted when he touched the cable.
Kerr was insured by Western Casualty under a policy which provided for the payment of all sums which the “insured” should be legally obligated to pay as damages because of use of the truck. Among the definitions of “insured” was that of “any person while using the automobile,” and the policy provided that “Use of the automobile for the purposes stated includes the loading and unloading thereof.”
Plaintiffs brought the action against Northwestern and Sheets, alleging negligence on the part of each. Northwestern and Sheets brought Western Casualty into the case by separate third party complaints, alleging that
Northwestern has presented three questions:
(1) Whether Western Casualty is liable to it.
(2) Whether the judgment should be in an amount not in excess of $10,000 by virtue of the Colorado Employers Liability Act as then in effect.
(3) Whether Northwestern should recover against Sheets.
We answer each question in the negative.
I.
One portion of Western Casualty’s brief seems to imply that operation or use of the truck would have to be involved in order for Northwestern to be an “insured” under the policy and, even if “unloading” had commenced, the negligent operation of the crane could not be considered use of the truck. We do not pass on this and, for the purpose of this decision, assume that, if Northwestern had commenced the “unloading” of the pipe, it would be insured under the Western Casualty policy. Therefore, the answer to the first question depends upon the correctness of the trial court’s finding that “unloading” by Northwestern, as the term is used in the policy, had not yet commenced.
The annotations and cases bring out three things:
(1) There are two doctrines, namely, the “coming to rest” doctrine and the “complete operation” doctrine;
(2) as is generally true in the construction and interpretation of insurance contracts, the intention of the parties to the contract is controlling; and
(3) that each case must be decided upon an ad hoc basis.
Under the “coming to rest” doctrine, “unloading” comprises only the actual removing or lifting of the article from the loaded vehicle to the moment when it again comes to rest. The “complete operation” doctrine embraces the entire process involved in the movement of goods from the time they are given into the insured’s possession until the insured has completed delivery thereof. See Annot., 95 A.L.R.2d 1129. Under either doctrine there must be some act on the part of a person, other than the named insured, to cause commencement of coverage of such person. It is urged that coverage of Northwestern was in effect while the boom was being swung around because this was a preparatory step to unloading. If this be true, then coverage must have commenced at the time the crane ceased digging and detachment of the bucket was commenced; and, if then one of Northwestern’s employees on the crane negligently operated it, causing injury or death to someone, Northwestern would be insured by Western Casualty with respect to the matter. We do not believe that this was the intent of the provisions of the policy.
The trial court found that “unloading” could not commence until the pipe hook had been attached to the
II.
Northwestern contends that, under the authority of Jacobson v. Doan, 136 Colo. 496, 319 P.2d 975, Rooks was a loaned employee at the time of the accident to Northwestern and under its control. It argues, therefore, under the Employers Liability Act the plaintiff’s damages should have been limited to $10,000. The Act, inter alia (C.R.S. 1963, 80-5-1), provides:
“Every corporation or individual who may employ agents, servants or employees, such agents, servants, or employees being in the exercise of due care, shall be liable to respond in damages for injuries or death sustained by any such agent, servant or employee resulting from the carelessness, omission of duty or negligence of such employer, or which may have resulted from the carelessness, omission of duty or negligence of any other agent, servant or employee of the said employer, in the same manner and to the same extent as if the carelessness, omission of duty or negligence causing the injury or death was that of the employer.”
The following section, in effect at the time of the accident, limited damages to a sum not exceeding $10,000. The plaintiffs have not raised the question as to whether the dependents of a loaned employee can sue his employer for wrongful death. Consequently, we will consider only the issue as presented in the briefs and on oral argument.
“A. He (Rooks) came in with a load of pipe and wanted to know where it was to be unloaded, and I directed him to the place alongside the excavation at this particular point, and then he parked.
“Q. Now, were you there near the scene where he parked the truck?
“A. Yes.
“Q. And you told him exactly where to park the truck?
“A. Not exactly. I told him to park it so that the pipe could be unloaded on the south side of the ditch.
“Q. And he did so?
“A. Yes.
* ❖ *
“Q. Now, after the truck driver parked the truck, what happened next?
“A. I asked him if he had brought the hook to unload the pipe, and he said he had, and he got it from the truck. He had it chained down just behind the cab, and he got the hook and brought it to the rear of the truck.
“Q. Did he bring it by himself?
“A. No, I believe Mr. Brown and I both helped him carry it. It is quite heavy.
❖ ❖ *
“Q. Now, after this device which you have identified as a pipe hook was taken from the truck, what next was done with it?
“A. We placed it on the ground at the rear of the load of pipe and had decided to use the shackle which attached to the end of the hoist line of the crane rather than the one which you see on the hook here which you have described, and we set the hook upon the longer leg with the shorter one in a vertical position and were
“Q. Now, you say ‘we.’ Who was present at that time?
“A. Mr. Brown, Mr. Rooks and I.
“Q. You were all, as I understand it, gathered around this pipe hook. Is that right?
“A. Yes, that is right. I was more or less watching. They were doing the work. I was just watching.
“Q. What was Mr. Rooks doing?
“A. He was assisting in removing the shackle. I believe Mr. Brown was holding the hook in an upright position and Mr. Rooks was removing the shackle.
❖ * *
“Q. Now, tell exactly what happened as the boom was being swung toward the two men with the pipe hook.
“A. Well, I knew the crane was swinging. Mr. Rooks jumped up, and then I grabbed the hook and he jumped up to catch the line on the crane.. . .”
In Doan, relied upon by Northwestern, Doan was an employee of the May Company; he was specifically directed by his superior to assist a freight company in unloading a certain shipment; The May Company supervisor left the scene and Doan came “under the supervision, direction and control” of the freight company personnel; and while so acting Doan was injured. Rooks’ situation here is quite different. While he was assisting Rowe and Brown at the time of his death, there was no showing that his employer, Kerr, had ordered him to do so and it is apparent from Rowe’s testimony that he did not bring himself under Rowe’s orders and control. Consequently, he was not a loaned employee. See Chartier v. Winslow, 142 Colo. 294, 350 P.2d 1044.
III.
Northwestern maintains that only Sheets was negligent, that the only basis for its liability to plaintiffs is under the doctrine of respondeat superior and that, therefore, it is entitled to contribution from Sheets. It
The evidence would support a finding that Northwestern had not established by a preponderance of the evidence that the negligence of Sheets was the sole cause of the injury and even a finding that there was negligence on the part of Brown or Rowe or both. In Parrish v. DeRemer, supra, there is a summary of the general principles announced in Colorado & Southern Railway Co. v. Western Light & Power Co., 73 Colo. 107, 214 P. 30. A portion of this summary is as follows: “4. One who has been charged with negligence as to another, and for which judgment has been entered and paid, may maintain an action against a joint tort-feasor for indemnification if he can establish by a preponderance of the evidence that the sole, proximate and primary cause of the injury and resultant judgment was the negligence of his joint-feasor.”
This principle was followed in Otis Elevator Co. v. Maryland Casualty Co., supra, and we find nothing in Hamm v. Thompson, supra, in conflict therewith. We conclude that the trial court’s finding that Northwestern was not entitled to recover against Sheets must have been based upon the trial court’s conclusion that Sheets’ negligence was not, or at least was not established by a
The judgment is affirmed.