Opinion
28995.
DECIDED JULY 6, 1942. REHEARING DENIED JULY 22, 1942.
Complaint; from Fulton civil court — Judge McClelland. January 31, 1941. (Application to Supreme Court for certiorari.)
Neely, Marshall Greene, W. Neal Baird, for plaintiff.
Smith, Smith Bloodworth, for defendants.
1. Under a policy indemnifying an insured for damages caused by his negligence as a deliveryman operating an automobile in which goods are transported, wherein it is provided that the purposes for which the automobile is to be used are "commercial," and that the term "commercial" is defined as "the transportation or delivery of goods, merchandise or other materials, and uses incidental thereto, in direct connection with the named insured's business occupation as expressed in item 1" (item 1 being that the insured's occupation or business is that he "delivers" exclusively for a named person), and that the "use of the automobile for the purposes stated includes the loading and unloading thereof," the coverage of the policy includes, not only the lifting and taking of goods from the automobile after the transportation of the goods, but also the carrying and delivering of such goods at the point of destination, where such delivery is within the discharge of the insured's duty to his employer. Thus, where the insured, in the discharge of his duty to his employer, is required to transport, in the automobile, an adding machine and deliver it in a building and there place it at some point in the building, as placing it upon a desk, the policy, which covers the "unloading" of such machine under its terms as above indicated, covers the delivery and depositing of the adding machine upon a desk in the building at the point of completion of the insured's duty to his employer. An injury to a person caused by the falling of the machine upon her foot, as the result of the negligence of the insured in placing the machine upon the desk when delivering it, is within the coverage of the policy.
2. In a suit by the person injured as above indicated against the insurer, where the plaintiff had already recovered a judgment against the insured for the negligent infliction of such injury, the petition set out a cause of action, and the court erred in sustaining the demurrer.
DECIDED JULY 6, 1942. REHEARING DENIED JULY 22, 1942.
Margaret Fisher brought suit in the civil court of Fulton County against the American Casualty Company of Reading, Pennsylvania, in which she sought to recover $1153.75, with interest from September 17, 1940. It was alleged that the defendant was indebted to the plaintiff in the above sum; that this was the amount of a judgment obtained by the plaintiff against Charles H. Barner; that Barner "was the holder of a liability insurance policy in the defendant company indemnifying him to the extent of $10,000 for each person who might be injured and to whom he might become liable;" that on September 29, 1939, the plaintiff was injured by the negligence of Barner "in the delivery of an adding machine for Underwood-Elliott-Fisher Company;" that the plaintiff brought suit in the city court of Decatur, DeKalb County, Georgia, against Barner, and on September 17, 1940, obtained a verdict and judgment for the above sum; that the defendant furnished Barner the defense to this suit by employing the law firm of Smith, Smith Bloodworth to defend it; that when such verdict and judgment were rendered against Barner no motion for new trial was filed and the judgment became final; that a fi. fa. was issued on the judgment and was placed in the hands of the sheriff of DeKalb County who undertook to find property on which to levy it; that the sheriff, being unsuccessful in finding any property, entered a nulla bona on the fi. fa.; that Barner is insolvent; that the policy issued to Barner, a copy of which is attached to the petition, provided that "any person or his legal representative who has secured . . a judgment . . shall thereafter be entitled to recover under the terms of this policy in the same manner and to the same extent as the insured;" that such policy also provided that "bankruptcy or insolvency of the insured shall not relieve the company of any of its obligations hereunder;" that the plaintiff has made demand on the defendant for payment of such judgment "under the terms of this policy," but the defendant has refused to make payment; and that "petitioner brings this suit directly against the defendant by virtue of the provision of said policy authorizing direct action against it."
A photostatic copy of the policy attached to the petition as an exhibit shows that the defendant, on March 31, 1939, insured Dell W. Denmark Jr., whose occupation was, as set out in item 1 of the policy, "delivers exclusively for Underwood-Elliott-Fisher Company, 159 Spring St. S.W., Atlanta, Ga.," until March 31, 1940. Attached to the policy is an indorsement by which the name of the insured was changed to Charles H. Barner. This indorsement was designated as "No. 1," and recited that it was effective as of 12:01 a. m., May 1, 1939. This indorsement also recited that no other change was made in the policy of insurance. Attached to the policy there appears another indorsement designated "No. 2," which recited that it was issued in lieu of indorsement No. 1. This indorsement, which was entitled "an assignment of interest," recited that, subject to all the declarations, agreements, exclusions, and conditions expressed in the policy to which it is attached, the company agrees to the assignment of the policy to Charles H. Barner. As to the business or occupation of Charles H. Barner this indorsement recited: "delivers exclusively for Underwood-Elliott-Fisher Company, Atlanta, Georgia," recited that the name and address of Barner's employer was "Underwood-Elliott-Fisher Company, Atlanta, Georgia," and stated that the automobile described in the policy would be principally used for commercial purposes only and garaged in the City of Atlanta. Such indorsement further provided that it was effective as of the same date as indorsement No. 1, and also that it was attached to and formed a part of the policy which the company issued to Dell W. Denmark Jr. The policy described the automobile insured as a 1936 Ford "delivery sedan," used for commercial purposes, which is defined therein as the "transportation or delivery of goods, merchandise or other materials and uses incidental thereto, in direct connection with the named insured's business occupation as expressed in item 1." The policy also provided that "use of the automobile for the purposes stated includes the loading and unloading thereof."
As to the coverage under the attached policy it is provided that the liability of the company for bodily injury is limited to $10,000 for each person and $20,000 for each accident, and that its property-damage liability is limited to $5000 for each accident. In the declarations appended to and forming a part of the attached policy, it is recited that the company agrees "to pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages, including damages for care and loss of services because of bodily injury including death at any time resulting therefrom, sustained by any person or persons, caused by accident arising out of the ownership, maintenance, or use of the automobile." Condition M of the attached policy is as follows: "No action shall lie against the company unless, as a condition precedent thereto, the insured shall have fully complied with all the conditions hereof, nor until the amount of the insured's obligation to pay shall have been finally determined either by judgment against the insured after actual trial, or by written agreement of the insured, the claimant, and the company, nor in either event unless suit is instituted within two years and one day after the date of such judgment or written agreement. Any person or his legal representative who has secured such judgment or written agreement shall thereafter be entitled to recover under the terms of this policy in the same manner and to the same extent as the insured. Nothing contained in this policy shall give any person or organization any right to join the company as co-defendant in any action against the insured to determine the insured's liability. Bankruptcy or insolvency of the insured shall not relieve the company of any of its obligations hereunder."
By an amendment to the petition, allowed January 14, 1941, the plaintiff alleged that a copy of the petition filed by her against Charles H. Barner in the city court of Decatur, in which petition the allegations of negligence against Barner are set forth in full, was attached to the amendment, and that the verdict and judgment rendered against Barner in that suit were on one or more of the allegations of negligence set forth in the petition. It appears from the attached copy of the petition filed by Margaret Fisher against Barner that the defendant has injured and damaged the plaintiff in the sum of $5000; that on September 29, 1939, the plaintiff was employed in the office of the solicitor of the United States Department of Agriculture in the Glenn Building at Atlanta; that sometime prior thereto, the department for which the plaintiff worked had ordered from the Underwood-Elliott-Fisher Company, a new adding machine which for some reason could not, at the time the order was placed, be delivered; that a machine to be used temporarily was delivered by the company, through Charles H. Barner, and placed upon a desk in the office in which the plaintiff worked; that the desk upon which this machine had been placed "was so constructed that upon one side thereof was a wing which was unsupported by any legs, and the weight of the adding machine permitted the use of this wing for the holding of papers or copy from which figures were taken when the machine was in use;" that on the above date Barner brought to the office of the solicitor the new machine "for final delivery and was expected to install the same and return the machine which had been in use temporarily;" that it was the duty of Barner under his agreement with his employer to install the new machine on the desk provided for that purpose by the government; that in order to install the new machine Barner had to remove the other machine which had been in temporary use; that, "pending the removal" of the latter machine, Barner placed the new machine on the wing of the desk which, as stated, was provided for the holding of books and papers while the adding machine was in use; that in the exercise of ordinary care Barner should have known that the weight of the new machine would upset the desk immediately on removal therefrom of the other machine, but despite this knowledge Barner left the new machine on the wing of the desk and lifted the other one from its place, thereby causing the new machine to upset the desk and become precipitated to the floor; that the plaintiff who was standing near was struck on her foot by the falling of the new machine and was thereby injured; that the plaintiff was free from fault and had no notice that Barner would remove the old machine before first placing the new machine where it could not be precipitated to the floor and on her foot; that Barner was negligent in placing the new machine on the wing of the table which was obviously unsupported, and permitting the new machine to remain in this position while he removed the other machine which maintained the balance of the table until it was removed therefrom; in not placing the new machine on the floor or on some other article of furniture in the office until the exchange could be accomplished; and in failing to give the plaintiff any warning of his intention to remove the temporary machine without first placing the new one in a place of safety.
On January 31, 1941, the plaintiff filed another amendment which was allowed subject to demurrer and which alleged that at the time of her injury Barner was completing the delivery of the adding machine, in the furtherance of his business, and this delivery was in connection with the use of the automobile described in the policy, and "the delivery at said time and place was incidental to the use of said automobile as a commercial delivery car in connection with the business of the insured Barner as described in said policy." It was further alleged in this amendment that the delivery of the adding machine "in one of the offices of the Glenn Building, City of Atlanta, constituted a part of the unloading of the said vehicle described in said policy of insurance."
The defendant demurred to the petition on the ground that no cause of action was set forth, and renewed its demurrer to the petition as amended. The judge sustained the general demurrer and dismissed the action. The plaintiff excepted. On November 28, 1941, this court certified to the Supreme Court a question in this case. The Supreme Court, on June 17, 1942, in an opinion in response to the certified question, refused to answer it. The case is now for decision without the benefit of an answer by the Supreme Court to any certified question in the case.
The plaintiff was injured by the alleged negligence of Charles H. Barner. She brought suit against Barner and obtained a judgment. The injury was sustained when Barner, while in the act of delivering to the office in which the plaintiff was employed a new adding machine, negligently caused the new machine to fall on the plaintiff's foot. Barner was the employee of the Underwood-Elliott-Fisher Company and was delivering the new adding machine for his employer at the time the accident occurred. Barner, as such employee, was insured by the defendant. The policy provided that, in the event of an accident within the terms of the policy and the procurement of a judgment by the person injured against the insured, the company would indemnify the insured to the extent of $10,000 for each person who might be injured and to whom the insured might be liable, and that a suit to recover on this judgment to the extent of such liability could be instituted directly against the insurer by the injured person. The policy provided that the company agreed "to pay on behalf of the insured all sums which the insured should become obligated to pay by reason of the liability imposed upon him by law for damages . . sustained by any person or persons, caused by accident arising out of the ownership, maintenance, or use of the automobile" described in the policy, which automobile the policy provided was to be used by the insured as an employee of the Underwood Company for commercial purposes only. The policy defined "commercial" purposes as being the "transportation or delivery" of goods, merchandise, or other materials, and "uses incidental thereto, in direct connection" with the business occupation of the insured, and provided that "use of the automobile for the purposes stated includes the loading and unloading thereof."
The question presented is whether the plaintiff was injured while Barner, the insured, was engaged in transporting or delivering an article of merchandise for his employer within the terms and coverage of the policy. This coverage included transportation or "delivery" of such products. Transportation or delivery of such products, under the terms of the policy, is included in the loading and unloading of the automobile. If Barner was engaged in the transportation or delivery of the adding machine when, after removing it from the automobile and carrying it into the building where the plaintiff's office was, he placed it on the desk and through negligence caused the machine to fall on her foot, his act, by which the plaintiff was injured, was within the terms and coverage of the policy.
In Maryland Casualty Company v. Tighe, 29 F. Supp. 69, which involved a policy with provisions identical with the policy here involved, it appeared that the assureds were engaged in business as fruit and vegetable peddlers; that they were sued in the State court of California; and that they called on the insurer to defend that suit. The insurer brought a suit in the Federal district court for a declaratory judgment. The evidence showed that the assureds were making a delivery of some vegetables to the Picadilly Inn in San Francisco, and their automobile truck, which was the automobile insured, had been parked at the curb across the street from such inn. An assistant of the assureds had carried a load of vegetables from the truck into the inn and intended to return to the truck for more vegetables to be delivered to the inn. As this assistant was running across the sidewalk toward the truck he struck the plaintiff, a pedestrian, and caused the injuries sued for in the State court. One of the questions in the case was whether the assureds, through their servant, were in the act of unloading the truck and delivering the products when the accident occurred. The court held: "Plaintiff contends `(1) that unloading is completed when the goods are physically removed from the truck, and that the purpose of delivery is entirely different from unloading; (2) that if, under any circumstances, delivery is a part of unloading, the unloading is completed when the delivery is actually made; (3) so far as some future or additional unloading is concerned, it certainly would not start until some physical act was performed on or about the truck for the purpose of effecting such unloading, and the mere intent in the mind of the boy in returning from the Picadilly Inn, crossing the sidewalk and crossing the street, to unload some further goods constituted no act of unloading within the meaning of the policy.' Such a construction of the policy as that contended for is entirely too narrow. Insured was using his truck in making delivery of produce to a customer. When the accident happened the process of unloading was in operation. It was a continuing process, including delivery, and could not be completed until all of the produce was delivered to the inn. The accident happened while the unloading was being consummated. The facts show that the State action and the alleged injury are covered by the policy." See Maryland Casualty Co. v. Tighe, 115 Fed. 2d, 297, where the above decision was affirmed by the Circuit Court of Appeals. For similar cases see Wheeler v. London Guaranty c. Co., 292 Pa. 156 ( 140 A. 855); Panhandle Steel Products Co. v. Fidelity c. Co. (Tex.Civ.App.), 23 S.W.2d 799; Owens v. Ocean Accident c. Co., 194 Ark. 817 ( 109 S.W.2d 928). In all of these cases it was held that the unloading of the insured automobile embraced the continuous act of placing the commodities where they were intended to be actually delivered by the use of such automobile.
In State ex rel. Butte Brewing Co. v. District Court, 110 Mont. 250 ( 100 P.2d 932) which was a case involving a similar policy, it appeared that the brewing company was engaged in delivering a barrel of beer which was to be delivered into a basement through hinged doors in the sidewalk. The beer had been taken from the truck and placed on the sidewalk. One of the servants of the brewing company entered the customer's place of business, proceeded to the basement, unfastened the lock under the hinged doors, and then raised a portion of one of the doors above the level of the sidewalk, just as one McCulloh was about to step on it, causing injury to McCulloh. The injured man brought suit against the brewing company, and the brewing company requested the insurer to defend such suit. The insurer declined to do so, and the brewing company then brought suit against the insurer seeking a declaratory judgment as to whether the accident in question was covered by the policy. In that case it was contended by the insurer that the unloading of the truck had been completed, and that since the delivery of the beer was undertaken after the beer had been removed from the truck such delivery was not covered by the policy. The provisions of the policy in that case were identical with the provisions of the policy in this case. The court said: "We hold that under the facts here presented the unloading of the truck was a continuous operation from the time the truck came to a stop and the transportation ceased until the barrel of beer was delivered to the customer. The unloading of the truck can not be said to have been accomplished when the barrel of beer was placed upon the sidewalk," and the policy of insurance involved "specifically covers liability for injuries sustained in loading and unloading, though obviously the truck is not in actual use in that process."
Under the policy the unloading of the adding machine from the automobile included the delivery of the machine. The delivery was accomplished only when the machine was placed on the desk in the plaintiff's office. The unloading was in process when the machine was being placed on the desk. The injury which resulted from the negligence of Barner, the insured, when placing the machine on the desk, was caused by his negligence in unloading the machine. For such injury the defendant is liable under the terms of the policy.
There is nothing in Morgan v. New York Casualty Co., 54 Ga. App. 620 ( 188 S.E. 581), contrary of what is held here. The court in that case held: "A policy of insurance which obligated the insurer to pay all claims which the insured might become liable to pay as damages resulting from the use of an automobile truck in the transportation of materials or merchandise, including loading and unloading, and which contained an agreement `to defend suits for damages even if groundless,' did not obligate the insurer to defend an action based on a claim of injury the proximate cause of which was in no way connected with the operation of the truck." In that case the unloading of the insured truck did not result in the injury. The coal with which the truck had been loaded was being shoveled through a coal chute in the sidewalk, and it was charged that the defendant, who was the assured in the policy in that case, was negligent in leaving the coal chute unattended, thereby causing a pedestrian walking along the sidewalk after dark to be injured. The court in that case said that it was not claimed that the pedestrian's injuries resulted from the negligent operation or use in any way of the insured automobile truck, and there is nothing which "connects the use of the automobile truck, covered in the insurance contract, with the open coal chute; and it was that suit which the plaintiff in the present case, . . called upon the insurance company to defend;" that "so far as the allegations of the Freeman petition show, coal may have been hauled to the coal chute in a wagon, or rolled there in a wheelbarrow;" that "it clearly appears from the allegations of the Freeman petition that the proximate cause of his injuries was, not the use or operation of the truck in transporting materials or merchandise or loading or unloading, but his falling into the open and unattended coal chute, as therein alleged;" and that "the insurance company would not be bound to defend a suit although groundless unless in some way the injuries resulted from the maintenance or use of the automobile truck." It does not appear from the report of the case that the policy involved in the Morgan case, like the policy in this case, included the "transportation or delivery" of the merchandise or products of the insured's employer in the insured automobile, together with uses incidental thereto in direct connection with the insured's business occupation, which was delivering adding machines and other products for the Underwood Company exclusively, which use of the automobile for the purposes stated included "the loading and unloading thereof."
It appears that the new machine had been placed on the wing or leaf of the desk and fell on the plaintiff's foot when the other machine was being removed from the desk. It is suggested that if the coverage of the policy extended to the delivery of the machine in the office upon the desk of the solicitor of the United States Department of Agriculture, the injury to the plaintiff, which was caused by the insured's lifting the old machine from the desk after he had placed the new machine on the leaf of the desk, and thereby causing the new machine to fall on the plaintiff's foot, was not within the coverage of the policy. The "unloading" of the adding machine which the insured had transported consisted, under the terms of the policy, in the final delivery of the machine in the office of the solicitor of the United States Department of Agriculture.
It is alleged in the petition in this suit that the verdict and judgment rendered against the insured in the case of the plaintiff against the insured were based on one or more of the allegations of negligence set forth in the petition in that case. This petition is attached as a exhibit to the petition in the present suit. In that petition it was alleged that the insured "brought to the office of the solicitor the new machine for final delivery and was expected to install the same and return the machine which had been in use temporarily," and that it was the duty of the insured, under his "contract or arrangement" with his employer, "to install said new machine on the desk provided by the government for that purpose," and that in order to install the new machine the insured "had to remove the other machine which had been in temporary use." It therefore appears from the allegations of the plaintiff in her suit against the insured that it was within the insured's contract of carriage with his employer by which he was to deliver the new machine to the office of the solicitor of the United States Department of Agriculture, that such delivery consisted in installing the new machine on the desk of the solicitor, and that in so installing the new machine it was the insured's duty to remove from the desk the old machine which had been left there in temporary use. This old machine, as appears from the allegations, had been temporarily delivered by the insured's employer, through the insured, and placed on a desk in the office of the solicitor for temporary use. It was therefore within the contract of delivery that the new machine should be placed on the desk and the old machine be taken therefrom by the insured for the purpose of being returned to his employer. The contract of delivery was not completed during the time the two machines were on the desk. It was completed only when the old machine had been lifted therefrom by the insured for the purpose of returning it to his employer.
Whether, in the suit by the plaintiff against the insured to recover on his alleged negligence in causing her injury, it was a question of fact for the jury whether the defendant was negligent and whether this negligence constituted the proximate cause of the injury, the verdict found for the plaintiff against the defendant established as a matter of law, in so far as the present suit is concerned, that the defendant's negligence was the proximate cause of the injury. In the present suit there is presented no issue for the jury as to whether the defendant was negligent and whether that negligence was the proximate cause of the injuries. If the injuries arose from the act of the insured which was within the coverage of the policy sued on, which this court now holds, the plaintiff is under the terms of the policy, entitled to recover of the insurer the amount of the verdict and judgment rendered against the insured in the suit against him by the plaintiff.
Under the allegations the defendant was liable for the amount of the judgment rendered against Barner, and the judge erred in dismissing the action.
The above opinion represents the opinion as originally written, with modifications and changes on motion for rehearing.
Judgment reversed. Sutton, J., concurs. Felton, J., dissents.