Red Ball Motor Freight, Inc. v. Employers Mut. Liability Ins. Co. Of Wisconsin, 189 F.2d 374

Red Ball Motor Freight, Inc. v. Employers Mut. Liability Ins. Co. Of Wisconsin

189 F.2d 374

5th Cir.

1951

Check Treatment

*1 page 47 L. page S.Ct. [624] Cir., States, Oesting

Ed. United as- People F. have traps advertising will

sume that fraudulent are them. ‘Laws

not be laid to ensnare protect as well as trusting

made to suspicious.’ Comm. v. Stand- Federal Trade Society, 302 U.S. ard Education Russell, Judge, dissented. 113, 115, 82 L.Ed. 141.” S.Ct. determina administrative representations made of whether the tion im a false

by appellant left readers with ra accepted if there is a

pression is to be Mississip conclusion.

tional for such basis States, Valley United pi Barge Line Co. v. 282, 286-287, 78 L. 54 S.Ct.

292 U.S. Corp. Telephone 1260; Rochester

Ed. 125, 146, States, 59 S.Ct. 307 U.S. United As the 83 L.Ed. 1147. by sub supported Postmaster General nothing ar as we find stantial evidence and conclu

bitrary palpably wrong in his

sions, correctly denied the district court 'and permanent injunction

the motion for a complaint. judgment is

dismissed the

Affirmed. Inc., FREIGHT, EM BALL MOTOR

RED INS. LIABILITY MUT. PLOYERS WISCONSIN. CO. OF

No. 13274. Appeals Court States

United Fifth Circuit.

May 22, 1951. *2 Worth, Tex., pay on Liability”, agreed Scurlock, for contracted and to Nelson Fort appellant. plaintiff, behalf of insured. as sued damages The claim was appellee. Tex., Martin, Dallas, for Mark Coverage- were, meaning of within for b, and out of by “caused accident HUTCHESON, Judge, Chief Before maintenance, or use of RUSSELL, Judg- (cid:127)and BORAH and automobile”. (cid:127)es. and, by liability

The denied defendant action, premiums recovery of sought cross HUTCHESON, Judge. Chief unpaid. due and insur- policy upon jury an automobile Brought without a Tried to the court suit conflict, No. upon Chevrolet tractor presenting a evidence defendant recovery sums XII. of I to was numbered for were of fact Property Damage had, “Coverage-b findings of these were under The first eleven1 of plaintiff herein, were: stated that These volved plaintiff arrangement in- issued to handle Defendant to I. should make their by policy, the terms an automobile sured the claims. Damage Property Rawlings, (Coverage-b employed of which VII. Plaintiff agreed Sayers “to Liability) Scurlock, Attorneys, Fort contracted & investigation, Worth, pay all sums Texas, on behalf of to conduct obligated negotiations to shall be vari- the insured and settlement liability imposed any claims, pay by suits reason ous and to defendant damages by might claims, upon because law for him that agreed filed on such property, attorneys injury pay in- a to or destruction to said reason- thereof, cluding caused loss of use services and rea- able fee for their a by by own- out of the fee such services rendered accident sonable maintenance, attorneys ership, au- or use $4500.00. said was by paid VIII. amount tomobile. total The including plaintiff “Use” was defined as in settlement the various II. expenses automobile. claims and therein involved By $17,441.72. the defend- terms of said The settlements were plaintiff’s faith; agreed good to all made and the ex- ant defend also against any penses behalf, name, suit and on its included said amount were damage necessary. plaintiff alleging reasonable and destruction filing property seeking ac- on IX. to Since the suit ground- corporate plaintiff if such suit is charter has been count thereof even amended, changing time, same the defendant its At name from less. such, Sproles-Red Lines, to make investi- Ball reserved the Inc. to Red Ball negotiation Freight, gation, Motor settlement Inc. expedient 20, 1947, January as was deemed X. On claim or suit one of the by plaintiff’s drivers, in the his it. course of duty employer’s premises HI. The limit defendant’s came to the to “Coverage-b Damage Property shipment drive a out with a mis- freight cargo. Liability” quoted $100,000.00. cellaneous The above aforesaid up equip- force tractor insurance was full trailer made Said trip. employer at the of the occurrence ment for time said and effect main- premises gasoline pump, on tained in this case. involved pieces equipment tanks, connected One of with two one under- IV. by ground plaintiff by overground, and covered said (cid:127)owned other to hold gasoline kept supply Chevrolet tractor No. on was a hand to motor properly notified defend- Plaintiff fuel us© in its V. fleet trucks. This particular occurrence involved needed ant of the case, some for trip. thereafter notified defendant said driver of the truck drove persons up by gasoline pump get made claims several same when against to damages alleged supply plaintiff such of motor fuel for the truck. underground aas re- He found sustained them have been tank was empty, opened involved herein. the occurrence he sult of valve between plaintiff notified the two in order to Defendant tanks VI. flow obligation upper opinion there was on from to the lower tank and plaintiff protect through part pump and insure thence into the truek. explosion put delivery regard in- He also accident hose and nozzle be con to, distinguished facts from been the insurer must selected testified liberally drawn strued the insured and inferences conclusions favor of part insurer;4 up strictly (2) these. *and against The Twelfth made *3 policy from of two language of facts inferences if admits part and upon constructions, and them. inferences that most favorable to Based on these law,3 adopted.5 judg one conclusion there was a be must on the ment defendant of no support, ap- precise more In fuller and premium sued for on and for the cases,6 pellant, citing with discussing and cross bill. particular Texas,7 emphasis on two plaintiff Appealing judgment, from this great, controlling, insists that attacking is here conclu- erroneous authority supports its contention XII, sions fact and the con- finding damages were within that the accident and law, insisting judg- clusion of that and policy, the defend- and may ment not stand. ant is liable. poli- position, Appellee, part, support it invokes insists that the In of its on that, applied cy unambiguous construction insurance rules of having upon policies: language (1) the authorities facts as found and pump into the intake connected with the track was not substantial tank, leakage gaso- pipe coupled there the track’s fuel witb the filling filling partial was an uneventful line. tank, filling was said then the fuel casualty question I. 3. The this cáse by stopped, followed withdrawal of did not arise “out delivery nozzle. The truck said hose and automobile”, or use of maintenance the aforesaid valve driver next turned rendered be as far it would between the two tanks defendant. thinking go it, had he dose actually having so, off but without cut Co., 4. v. Cas. 132 McCaleb Continental valve, gasoline through the flow of he 679; 65, Tex. 116 Brown v. Pal 590, S.W.2d away about his then drove Co., Ins. 35 atine 89 Tex. S.W. said was duties and work. The valve 702-11; ; Tex.Jur., 1060 24 Lewis v. faulty in that sometimes it did not shut 18, Accident, 224 N.Y. 120 Ocean N.E. stop, tight when first turned to a 1129; off International Trav 7 A.L.R. had and forth to be worked back Francis, 119 elers’ Ass’n v. Tex. 23 completely until would dose. it S.W.2d 282. gasoline failure to cut off flow Aetna Co. Houston Oil & Trans- 5. v. Ins. time resulted from valve port 121; Co., Cir., F.2d Love 5 49 v. neg- faulty and the condition valve Co., Cir., Ins. Northwestern Natl. 5 Life lect of the driver to notice he would 251; Digest, 119 Texas Insur- F.2d 22 keep working some have to valve ance, p. <S^>146(3) 157. completely. The em- more to close it ployer’s premises were said located Co., 6. Schmidt v. Utilities Ins. 353 Mo. Worth, Fort Texas. 1088; 154 182 S.W.2d A.L.R. storage gasoline XI. The from the Tighe, Cir., Maryland 9 Cas. Co. 115 v. flowing it over- tanks continued until 297; Brewing State ex rel. Butte F.2d coursing city flowed, and after down the Court, Co. v. District 110 Mont. 100 blocks, gutters ignited for several 932; Maryland P.2d Co. Cas. v. Casset causing way, a rather destructive some 602; ty, Cir., 119 F.2d 6 Earl W. Baker explosion, about an hour after the de- Lagaly, Cir., 344; & 10 F.2d Co. 144 parture truck, truck. The said Huntington Cab Co. Am. Fid. & Cas. time, forty fifty some miles at the 117; Co., Cir., 4 F.2d Paul 155 St. out of Fort Worth. Mercury Crow, Cir., Ind. Co. v. 5 164 270; F.2d Auto. Ins. Pacific Co. v. Com This was: 2. Ins. 108 mercial Cas. Utah 16 truck had no connection XII. The A.L.R. P.2d note. exploded. gasoline which Such with the Employers Brock, had never even been fuel Ins. American Tex.Civ.App., had not served the of the truck. It Pan- tank ,at Fidelity purpose all. the truck handle Products Co. v. Steel Un- S.W.2d; Co., Tex.Civ.App., about it connected with ion no defect Cas. leakage gasoline. The use of construction proper the the relies,8 quite clear it is unloading” he clause of the holding, judge district of cases in the two lines differences not did did, that the accident on respective theories from the spring ownership, maintenance arise from the is based. was which the construction automobile, liability. and no limited these, the narrow or One of may that, rest,” cases for oc While we are aware that “coming support the view the load directly found which narrow involved in currences not contend- unloading clause unloading, affords given effect appellee, coverage.10 ed *4 appellant agree with judge,9 the we district other, Texas adopted in theory the authority, particular- that the “complete op- the generally known as contrary. Texas, agree We ly is to the provision the theory”, eration holds that therefore, state- the appellant, with that coverage for use to foreseeable extends XII, truck finding “The made in fact ments consequences in connec- done of what was which the connection with car, be- use the whether tion with the * * * the exploded use of fore, after, during unloading, loading or or coupled with was not actual by the in- thing so long as the or act regarded as leakage gasoline”, if accident employee sured’s which causes clearly law, are of fact and not of car. the insured’s arises out use of erroneous, is, support in that without Neither we unmindful are regard we under the authorities evidence accident, for causing the fact that the act controlling here. as best considered here, coverage claimed occurred which is adopt, only Because the as not view we into, loaded cargo being or not while upon us as general binding correct but tractor-trailer, unloaded from but Texas, adopted from which the view fueled, being and that tractor was while the comes, convincingly and is case set out that, therefore, wider it contended is cases, par- clarity Texas great with with load in connection accorded case, 7, Brock cited note ticularly the applicable unloading11 here. ing is not supported supra, a wealth opinion defini- We are of us, citations, without it is for sufficient loading and un- “including “use” as tion of more, that case to Pacific to refer to significance in great loading” is of no Co., Ins. 108 Commercial Auto Ins. Co. v. broadening meaning fueling and that 423, 500, 1251 and 160 A.L.R. 161 P.2d Utah just much journey for it, authority for our the annotations to journey would making “use” is differ- discussion of two for view and Steel, 7, supra, Panhandle note be. Cf. lines of authorities. Without, was not defined. where “use” so case, supra appellant’s In Brock stating adopting therefore oper- our there was authority loading view truck was fueling that, here, though unmindful of the invoked au- ation, we are not we hold all, nearly arising all out that case and with accidents fact thorities do deal it, they point cargo, referred dealt with are in handling the cases Indemnity Lee, D.C., Super. Co., Pa. 8. Connecticut Indemn. 155 tective F.Supp. 353; 493; Kitzmiller, Bobier v. National Cas. A.2d 220 74 Stammer 798; Co., N.E.2d 143 Ohio St. 276 N.W. 629. Wis. Brewing Co., v. Dis ex rel. Butte State 11. In Panhandle Products Co. v. Steel Court, 110 Mont. 100 P.2d trict Fidelity Co., Tex.Civ.App., Cas. Union Annotation, A.L.R. cases cited though 23 S.W.2d 1097-1098. did not a definition of “use” contain to Pacific Auto. Ins. Co. Annotation Cf. loading “including unloading”, Co., 160 A.L.R. v. Commercial Ins. Court held Texas and unload page 1264. ing” in “use” and included followed the according coverage. Ferry liberal kind Pro rule of of this are 10. Cases performed with duties services being done at here where what was to. him, it—incident fueling this case motion wrongful time the was set in cause —in ownership, mainte- the and out of the an out of either act clearly nance, use tractor. maintenance of the truck the use readying journey. it for its the causé- is reversed not inconsist- further and remanded for broadly upon holding We our rest proceedings. ent view, developed by Supreme fully Utilities Missouri, Court of in Schmidt v. RUSSELL, (dissenting). supra, Judge Mo. Ins. [353 “arising that the words 185] liability Where a of automobile ownership, maintenance, or damage liability provides insurance spe are of narrow not words [truck]” designated arising out of “use” of broad, limitation, general, cific but are automobile, “including and defines “use” as comprehensive cov effecting terms broad of the automo to, and they intended erage and that bile,” quarrel principle- I with the have protection against do afford operation theory” “complete imposed for all upon him Employers the decision in Ins. American *5 employee acts, charge his in caused of Brock, Tex.Civ.App., truck, operation use done of the or of the adopts so law well announces as the of such in out of connection with However, question though Texas. the even “Arising of” are of much use. words of “loading unloading” is not involved significance by”. broader than “caused case, by majori recognized in as is the this ordinarily mean understood to They are present ty, holding ap is to the effect of “ in,’ origin ‘having ‘originating from’ theory” “complete operation to ply the- ”, ‘flowing or in ‘growing from’ out of’ or “use” I think anal automobile. short, to, connection having “incident defined as in ogy inapt. is Where “use” is with”, the use of the car. unloading” there is cluding “loading and escape an transactions- gaso- coverage extension of to of the That cause sequence can be proxi- properly which and occurrences line, which unbroken negli- contemplate conduct be explosion was the to held acts mately caused the merely failing yond as a. the use automobile gent driver act he had term “use” without the valve after vehicle. But the close properly to tank, restricted to- enlarging endorsement fueling so finished his truck me direct It to over was a the vehicle. seems disputed. not That therefore, connection, this difference induces error proximate looking of causal prin escape application Thus the causing case. act between ciple supra, pres pay, case, Brock in the appellant to gas and the case, in the announcement driver ent this act of the results one That denies. valve, effect, closing theory, was the done “in acts tractor, not having preparation use” treated to, a connection should be as. act incident an maintenance, policy. or use with, within the necessary ques- be all acts which are truck, may holding not think we here, these to of the covered automobile are the use deny To tioned. immediately so accidents causing in- connected facts, because out of truck, be from them law arise would in the been never jury had which, concept contrary involves a broadly of the automobile to its limit to policy. not submit, authorized author- I to the terms (cid:127)stated application such proximately Limitation of injuries damages or ity, to itself, reasonable bound opposed within will to by the truck caused extremely difficult, impossible. tractor, if not prove charge of the the driver acts way, “loading and another unload Stated done connection be permitted to Indemnity Miss. So. Co. v. Hartford Accident & also Merchants Cf. ing” cargo refer to articles thus policy. On the the coverage

broaden hand,

other reason automobile “use” of the oper

ably only fairly contemplates there is

ation In this vehicle. ambiguity “use.” In order in the term

to cover now held similar situation I

analogous contain words think the must meaning “preparation

similar Only negligent

use.” act then would question1 subject appli now in to the principle

cation unloading” referred to in cases opinion of majority.

I the trial affirm would

Court. *6 ux. et STRAUB

SAMPSELL

No. 12676. Appeals Court

United States Circuit. Ninth

May 22, 1951. replenishing supply borne in mind 1. It means degree refueling removed from one was in effect tank from which was accom operation refueling plished. since the even essentially only defective valve