Yri, Kenneth

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North Dakota Law Review Volume 31 Number 1 Article 12 1955 Insurance - Liability Insurance - Injury Arising out of Unloading Vehicle Kenneth Yri Follow this and additional works at: https://commons.und.edu/ndlr  Part of the Law Commons Recommended Citation Yri, Kenneth (1955) "Insurance - Liability Insurance - Injury Arising out of Unloading Vehicle," North Dakota Law Review: Vol. 31 : No. 1 , Article 12. Available at: https://commons.und.edu/ndlr/vol31/iss1/12 This Case Comment is brought to you for free and open access by the School of Law at UND Scholarly Commons. It has been accepted for inclusion in North Dakota Law Review by an authorized editor of UND Scholarly Commons. For more information, please contact und.commons@library.und.edu. RECENT CASESment procedure was held valid subsequent to legislation :'o extending thescope of the writ of habeas corpus to include not only the question of wrong-ful confinement, but also the determination of the question of insanity. tIn Rhode Island, temporary confiinement without hearing in a non-emergencycase has been held justified on the ground that the nature of the action alwayscalls for emergency procedure.2The conflict seems to arise from the divergent interpetations of the conceptof due process, while the importance of the issue stems from the fear ofunjust confinement.:; Nevertheless, the fact of insanity is largely if notcompletely a matter of scientific diagnosis,34 and where a finding of insanityis attested to by qualified physicians,35 the presence or absence of judicialapproval would seem to be of little significance. Though there exists thepossibility of fraudulent confinement in case of dishonesty of the twoattesting physicians, determination of insanity by an appointed body ofqualified psychiatrists would leave little room for serious concern. 3GIt would be unwise to construe due process to mean the strict applicationof notice and hearing. No hard and fast rule can be laid down.-, Thewelfare of the mentally ill is an all important consideration, and their treat-ment would seem to call for special procedure consistent with the necessitiesof their unfortunate malady.WILLIAM11 C. KELSCHINSURANCE - LIABILITY INSURANCE - INJURY ARISING OUT OF UNLOADINGVEHICLE - Plaintiff had insured its delivery truck with defendant. The policycovered damages for bodily injury caused by accidents arising out of theownership, maintenance or use of the truck. The "use" of the vehicle in-cluded the "loading and unloading" thereof. In the course of its businessplaintiff delivered a roll of linoleum to a customer. Plaintiff's employeeremoved the linoleum from the truck and with the help of another liftedthe roll to the porch of the customer's home. Later the same day, becauseof the negligence of plaintiff's employee in placing the linoleum on the porch,the linoleum fell on the customer's daughter causing serious injury.Held, the injury was within the provisions of the policy because it arose out30. R.I. Laws 1896, c. 82 § 19. It should be noted that North Dakota has extendedthe application of the writ of habeas corpus to include determination of the question ofinsanity. N.D. Rev. Code 25-0328 (1943).31. In re Crosswell, 28 R.I. 137, 66 Atl. 55 (1907).32. Cf. id. at 58.33. Note, 56 Yale L.J. 1178 at 1182 (1947).34. Curran, supra note 9 at 283; Note 3, Stan. L. Rev. 109 at 110 (1950).35. In most jurisdictions physicians licensed in general practice are considered quali-fied experts on insanity. Glover v. State, 129 Ga. 717, 59 S.E. 816 (1907); Holt v.State, 840 Okla. Crim. 283, 181 P.2d. 573 (1947); Brody v. State, 116 Tex. Crim.427, 34 SW.2d 587 (1931). However, from within the field of medicine itself comesstrong criticism of this majority rule. The expert psychiatrist considers this unrealisticin view of the inadequate training of the general practitioner in the field of psychiatryor in the lack of interest in the subject of mental disorder. See Overholsen, PsychiatricExpert Testimony in Criminal Cases Since McNaghten-A Review, 42 J. Crim. & Crim-inology 283, 295 (1951). On the other hand it has been held that the trial judge canexclude a general practitioner as an expert unless he qualifies by having either specialknowledge or special study in the field of mental illness. McElroy v. State, 146 Tenn.442, 242 S.W. 883 (1922).36. An administrative board of qualified psychiatrists as proposed for the State ofCalifornia, outlined in Note, 3 Stan. L. Rev. 109 (1950).37. See Brock v North Carolina, 344 U.S. 428, 427-428 (1953).NORTH DAKOTA LAW REVIEWof the unloading of the truck. Raffel v. Travelers Indemnity Co., 106 A.2d 716Conn. 1954).In an effort to reach a fair result in determining when unloading beginsand ends the courts have applied either the "coming to rest" doctrine orthe "complete operation" doctrine. According to the former, unloadingcomprises only the actual removing (or lifting) of the article from the motorvehicle up to the moment when the goods removed have actually come toxest. 1 Under the complete operation doctrine, unloading includes the entireprocess involved in the movement of goods from the moment when theyare given into the insured's possession until they are turned over at theplace of destination to the party to whom delivery is to be made.2 Theformer theory distinguishes between unloading and delivery" while the latterclaims the unloading is one continuous operation; that is, the unloadingincludes the dilevery.4 A recent case stated that coverage under the completeoperation theory includes any act done by insured's employee which proxi-mately causes the accident arising out of the use of the insured's automobile.-The decision in the instant case is not inconsistent with the complete operationdoctrine which the Connecticut court has apparently adopted. The unload-ing was still taking place when the plaintiff's employee set the linoleum on thecustomer's porch, and it was through the negligence of this employee that thelinoleum later fell on the injured girl. The cause of the accident was the result ofthe unloading of the truck. If the peril insured against is the efficient,predominating cause of the loss, it is regarded as the proximate cause.6 na number of past cases the injury occurred during the controversial un-loading,7 while in the instant case the injury occurred after the unloadinghad been completed. However the injury did arise out of the unloading.Two other courts have followed the same line of reasoning.8The term "unloading" must be taken in its plain and ordinary sense. 9No definite rule can be set down as to what unloading should include, butbut each case must be treated separately according to the facts involved.10The policy in the instant case does not define "unloading" and because ofits apparent ambiguity, it should be construed most favorably toward theplaintiff." The insurance policy involved covers injuries arising out of1. See Pacific Auto Ins. Co. v. Commercial Cas. Ins. of New York, 108 Utah 500, 161P.2d 423, 424 (1945).2. See id, 161 P.2d at 425.3. See St. Paul Mercury Indemnity Co. v. Standard Ace. Ins. Co., 216 Minn. 193,11 N.W.2d 794, 796 (1943); American Oil and Supply Co. v. United States Cas. Co.,19 N.J. Misc 7, 18 A.2d 257, 259 (1940).4. See State ex rel. Butte Brewing Co. v. Dist. Ct. For Silver Bow County, 110 Mont.250, 100 P.2d 932, 934 (1940).5. See Red Ball Motor Freight Inc. v. Employers Mut. Liability Ins. Co., 189 F.2d374, 377 (5th Cir. 1951).6. Maness v. Life and Cas. Ins. Co., of Tenn., 161 Tenn. 41, 28 S.W.2d 339 (1930).7. Maryland Cas. Co. v. Cassety, 119 F.2d 602 (6th Cir. 1941); B & D MotorLines Inc. v. Citizens Cas. Co. of New York, 181 Misc. 985, 43 N.Y.S.2d 486 (1943);Pacific Auto Ins. Co. v. Commercial Cas. Ins. Co. of New York, supra note 1; LondonGuarantee and Ace. Co. v. C. B. White and Brothers Inc., 188 Va. 195, 49 S.E.2d254 (1948).8. Maryland Cas. Co. v. Dalton Coal and Material Co., 184 F.2d 181 (8th Cir. 1950);Schmidt v. Utilities Ins. Co., 353 Mo. 213, 182 S.W.2d 181 (1944).9. See United States Fidelity and Guaranty Co. v. Church, 107 F. Supp. 683, 687(N.D. Cal. 1952).10. See American Oil and Supply Co. v. United States Cas. Co., 19 N.J. Misc. 7,18 A.2d 257, 259 (1940).11. See Bobier v. National Cas. Co., 143 Ohio St. 215, 54 N.E.2d 798, 801 (1944).RECENT CASESownership, maintenance or use of the vehicle, and the term "use" includesthe loading and unloading thereof. The words "arising out of" seem to havea broad significance. One could understand it to mean originating from,having its origin in, growing out of or flowing from, incident to or havingconnection with the use of the vehicle.13 In the instant case the accidentclearly flowed from or grew out of the unloading.The adoption of the complete operation theory appears to be the moremodern view,1 3 and where the liability policy does not define unloadingit would seem that this theory would more effectively implement the intentof the parties.14North Dakota has not had to deal with the problem, but Minnesota 15and Wisconsin 16 are among the states 1T which have adopted the morelimited 18 coming to rest doctrine. Montana 19 follows the view which appearsto be that the majority of courts in accepting the complete operation doctrine."1KENNETH YRIJUDGMENT - DECLARATORY JUDGMENTS - NECESSITY OF A JUSTICIABLE CON-TROVERSY. - The action involed a petition for declaratory judgment of thevalidity of a city zoning ordinance, which prohibits the plaintiff from erectingsigns on the roofs of its buildings. In an impending eminent domain proceed-ing, an electric company sought to condemn a right of way to string wires overthe plaintiff's buildings. The amount of compensation due plaintiff from theelectric company was dependent upon the validity of the ordinance, since thespace above the buildings had value only for the display of signs, and theelectric company agreed to delay its proceeding pending the declaratory judg-ment. It was held, on appeal, that there was no justiciable controversy betweenplaintiff and city. Mayor, etc. of Savannah v. Bay Realty Co., 82 S.E.2d 710,(Ga. 1954).It is well settled that the existence of a justiciable controversy is essential12. See Schmidt v .Utilities Ins. Co., 353 Mo. 213, 182 S.W.2d 181, 184 (1944).13. See Maryland Cas. Co. v. Dalton Coal and Material Co., supra note 8; Red BallMotor Freight inc. v. Employers Mut. Liability Ins. Co. of Wisconsin, supra note 5;Schmidt v. Utilities Ins. Co., supra note 8; Pacific Auto Ins. Co. v. Commercial Cas. Ins.Co. of New York, supra note 1.14. See Turtlelaub v. Hardwars Mut. Cas. Co., 26 N.J. Misc. 316, 62 A.2d 830, 834(1948).15. St. Paul Mercury Indemnity Co. v. Standard Ace. Ins. Co., supra note 3. (Goodswere taken off insured truck and put on sidewalk. The injury occurred when they wereput on hand trucks and moved into a building. Held, the unloading process terminatedwhen goods were removed from the truck and placed on the sidewalk). Contra: B & D.Motor Lines Inc. v. Citizens Cas. Co. of New York, 181 Misc. 985, 43 N.Y.S.2d 486(1943).16. Stammer v. Kitzmiller, 226 Wisc. 348, 276 N.W. 629 (1937) (The insuredtruck was used to deliver beer. Driver removed a cover from the manhole in the side-walk and placed the beer keg on 'the sidewalk and later placed the keg through thehatchway. While driver was inside making out a sales slip plaintiff fell into the hatch-way. Court held that the unloading process had been completed when the beer keg wasplaced on the sidewalk.)17. Ferry .v Protective Indemnity Co., 155 Pa. Super. 266, 38 A.2d 493 (1944);American Cas. Co. v. Fisher, 195 Ga. 136, 23 S.E.2d 395 (1942).18. See Red Ball Motor Freight Inc. v. Employers Mut. Liability Ins. Co. of Wiscon-sin, supra note 6 at 377.19. State ex rel Butte Brewing Co. v. Dist. Ct. for Silver Bow County, supra note 4.(Beer was lowered from the truck to the sidewalk. Employee theen went into establish-nent and was raising a door from the sidewalk when a person stepped on the door andwas injured. Court held that the unloading of the beer was a continuous operation fromthe time the truck came to a stop until the beer was delivered to its destination.)20. See note 8 supra. L

Insurance - Liability Insurance - Injury Arising out of Unloading Vehicle

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Insurance - Liability Insurance - Injury Arising out of Unloading Vehicle

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