This is a bill under G.L.c. 231A for a declaratory decree that the plaintiff is an unnamed insured of a motor vehicle liability insurance policy issued by the defendant The Travelers Insurance Company to one Thomas L. Barron under which the plaintiff seeks to be indemnified against liability resulting from an accident on June 9, 1954, to the defendant Alice P. Higgs.
It is agreed that the accident to Mrs. Higgs happened in the manner presented by the evidence in the tort action as herein summarized. "Nichols occupied a portion of a building adjacent to 95 Bridge Street, Lowell. On June 9, 1954, James Lowe, the truck driver for Barron, parked the tractor-trailer unit, of Barron, containing a load of bales of wool and cashmere belonging to Nichols, adjacent to the building occupied in part by Nichols. Lowe was alone on the tractor-trailer, was stationed on top of the wool bags in the trailer for the purpose of pushing or tossing the bags of wool onto the ground where they were to be picked up by employees of Nichols and brought into the building where the wool was to be scoured by a company which had arranged to do that scouring for Nichols. There were four or five employees of Nichols on the ground arranged roughly in the form of a semi-circle around the portion of the truck from which Lowe was to unload the bags of wool. There were three different lots of wool destined for Nichols, and one of the employees of Nichols, who was standing on the ground, directed Lowe as to which lot he wanted tossed down. Lowe located that lot in the trailer portion of the truck. That lot consisted of bags of cashmere wool which
The trial judge instructed the jury that Lowe could be found to be negligent if he should have seen Mrs. Higgs and failed to do so, and that Barron could be found liable if Lowe was negligent. He also instructed the jury that the employees of Nichols could be found to be negligent "if they should have provided warning to persons who might come along but failed to do so," and that Nichols could be found liable if they found that the employees of Nichols who were present in the semi-circle, or any of them, were negligent.
The present suit was at the request of the parties reserved and reported without decision upon the bill, the answer of Travelers and the statement of agreed facts.
Travelers admits in its answer that the tractor trailer involved in the described accident was a motor vehicle described in its policy, a copy of which is annexed to the statement of agreed facts.
The policy provided for the statutory compulsory insurance under a clause designated "Coverage A" and for optional insurance affording a broader coverage to the amount of $25,000 for one accident under a clause designated "Coverage
The injuries sustained by Mrs. Higgs were caused by an accident (see Sheehan v. Goriansky, 321 Mass. 200, 205) arising out of the use of Barron's motor vehicle in the process of unloading the bales for delivery to Nichols. Under the terms of its policy Travelers was obliged to indemnify against resulting liability such persons as it had insured.
The policy provided that "insured" under Coverage B, "includes the named insured and also includes any other person responsible for the operation of the motor vehicle with the express or implied consent of the named insured."
The process of unloading the bales was incidental to their transportation and we think that the use of the truck in such unloading was "operation of the motor vehicle" within the meaning of the policy. Commonwealth v. Henry, 229 Mass. 19. Cook v. Crowell, 273 Mass. 356, 358. Jenkins v. North Shore Dye House, Inc. 277 Mass. 440, 445. Blair v. Boston Elev. Ry. 310 Mass. 1, 3. Diggins v. Theroux, 314 Mass. 735, 737.
The question for decision is whether the employees of the plaintiff were persons responsible to Barron for such operation with his express or implied consent. It was held in O'Roak v. Lloyds Cas. Co. 285 Mass. 532, 536, 538, that the words "`express or implied consent' primarily modify not the word `operation' but the word `responsible.' ... They imply a possession of the motor vehicle with consent
The only person who had possession of the truck was Lowe. The employees of the plaintiff never had possession nor did they attempt to exercise any control over it. Their activities were limited to pointing out the bales to be delivered and standing ready to pick up the bales when thrown down by Lowe. It is immaterial that to this extent they participated in the process of unloading. They did not thereby become responsible to Barron for the operation of the truck. It follows that they are not unnamed insured persons under Coverage B. The plaintiff's rights are not superior to those of its employees. Let a final decree be entered declaring that the plaintiff is not an insured under the policy issued to Barron and that The Travelers Insurance Company is entitled to its costs.