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INTERNATIONAL DERRICK & EQUIP. CO. v. BUXBAUM

March 7, 1956

INTERNATIONAL DERRICK AND EQUIPMENT COMPANY, Plaintiff,
v.
Henry R. BUXBAUM, individually and doing business as Tower Erection Company, Defendant, and Coal Operators Casualty Company, Garnishee



The opinion of the court was delivered by: FOLLMER

On suit of plaintiff, a manufacturer of broadcasting towers, to recover from defendant, plaintiff's subcontractor, the value of a radio antenna mast which was destroyed on April 15, 1948, while being erected by defendant on premises of Mercer Broadcasting Company at Trenton, New Jersey, judgment was entered for plaintiff. Thereafter plaintiff issued an attachment execution naming Coal Operators Casualty Company, defendant's insurance carrier, as garnishee. The matter is presently before the Court on plaintiff's motion for judgment against the garnishee filed after plaintiff's interrogatories and answers thereto by the garnishee.

The findings of fact in the opinion of the Court filed March 19, 1953, 110 F.Supp. 951, 953, as amended Jan. 31, 1956, 139 F.Supp. 799, detail the events out of which the accident occurred as follows:

 '8. The defendant's employees under the personal supervision of Mr. Buxbaum and the manager and chief engineer of the broadcasting company attached the lifting cable to the antenna mast a few feet above its midpoint, so that it could be raised in a position of approximately a 45-degree angle with the ground.

 '9. When the cable had been attached to the mast to the satisfaction of defendant from the standpoint of the lifting, and to the satisfaction of the broadcasting company's engineer from the standpoint of the protection of the antenna elements from possible damage from the cable, defendant directed that a short lift or 'strain' be taken on the winch. This raised the upper end of the mast several feet off the supports where it had been resting. At this time, the gin pole bent over as much as 5 feet.

 '10. Defendant directed his employees to lift the lower end of the mast so that it could be moved to another position with reference to the foot of the tower, and then directed the winchman to take another strain on the lifting cable.

 '11. While the winch was making the second lift, and the upper end of the antenna mast was 15 to 20 feet off the ground, the gin pole bent over and kept on bending, causing the mast to fall to the ground, with a part of the mast resting on the bed of the winch truck.

 '19. Defendant had exclusive control as to the choice of equipment and its use, the timing, and the various details incident to the actual erection of the antenna mast. The broadcasting company's engineer and general manager were present to control possible damage to the equipment during the lifting operation but neither took any part in the actual supervision.'

 The policy of insurance issued to defendant bound the insurer '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 because of injury to or destruction of property, including the loss of use thereof, caused by accident and arising out of the hazards hereinafter defined.' Hazards were defined as follows:

 'Division 1. Premises -- Operations. The ownership, maintenance or use of the premises, and all operations during the policy period which are necessary or incidental thereto.

 'Division 5. Contractual. The express undertakings of the named insured designated in the declaration.'

 The policy listed several exclusions including the following:

 '(g) under Coverage B, to injury to or destruction of property owned, rented, occupied or used by the insured, and with respect to divisions 1, 3, 4 and 5, of property in the care, custody or control of the insured; * * *.'

 The question before us here is a narrow one, namely, whether under the findings entered herein the antenna mast damaged by defendant's negligence was in the 'care, custody or control' ...


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