Druggist v. Travelers Insurance Co.

LILLIE, J. The case having been tried on an agreed statement of facts, plaintiff was given a declaratory judgment decreeing that defendant insurance company (referred to herein as “Travelers”) was liable to plaintiff (referred to herein as “Brunswig”) as an additional insured under a Travelers policy covering a rubbish truck owned by the employer of one Horn for the undisputed costs of settlement of a prior personal injury action filed by Horn against plaintiff. The basic issue below, as well as here, was whether Horn’s accident arose out of the “use” of the truck, which term expressly “includes the loading, and unloading thereof. ’ ’

The parties stipulated to the following facts. Horn was the authorized operator of the insured vehicle which was used to pick up boxes and other waste from various concerns, including Brunswig; he had been thus engaged for about one year, stopping at Brunswig’s premises five days of each week. On the date of the accident, Horn had parked his truck at the entrance to Brunswig’s waste well, about 20 feet from the point where his injuries were subsequently sustained; thus, at the moment of the accident he was in the waste well and engaged in the process of moving boxes and other trash to the entrance of the well from which point he would thereafter stack the boxes and trash on his truck. While Horn was so engaged, one Daniels, acting in the course of his employment for Brunswig, was on the floor above the waste well attempting to empty a metal cart or dolly full of trash into the opening of the chute to the waste well. Though Daniels would normally dump the trash from his cart onto the floor and then push it through the opening with a broom, on this occasion he attempted to dump the cart’s contents directly into the chute; in. doing so, Daniels lost control of the cart which fell from the [13]second floor down the chute to the bottom of the waste well on the first floor, striking Horn on the back.

The injuries thus sustained were proximately caused by the negligence of Daniels, and Horn thereafter filed suit against Brunswig and other parties. The Travelers policy, covering the truck, was in full force and effect on the date- of the accident. In pertinent part it provided that Travelers agreed to pay on behalf of Horn’s employer (John’s Rubbish Company) “all sums which said insured shall become legally obligated to pay as damages because of bodily injury . . . sustained by any person, caused by accident and arising out of the ownership, maintenance or use of the automobile.” The term “Insured” is therein defined to include anyone using the truck with the permission of the named insured, while “Use” is defined to include “the loading and unloading” of the vehicle. Finally, Travelers agreed by its policy to defend any suit against the “insured” which alleged bodily injury arising out of the use of the automobile.