I concur and dissent.
I would reverse to permit the trial court to make proper findings within its own discretion on all issues. The majority concede that no findings have been made on the subject of negligence or contributory negligence and usurp the trial court’s function when they direct it to find negligence on the part of Harbor’s insured. Further, the majority assume that the accident was no part of a loading operation. If it was, then on the law *571concededly applicable at bench (Glens Falls Ins. Co. v. Globe Indem. Co., 276 Cal.App.2d 643, 646-647 [81 Cal.Rptr. 28]), the question of whether it was part of a loading operation would be decisive of the case.
That the facts stipulated by the parties and adopted by the findings of the trial court form an inadequate basis for decision is demonstrated by the majority opinion which augments the record with the depositions of Miller, Grossenbach, and the latter’s supervisor Abridge. Viewed in terms of all the evidence, whether or not the caterpillar’s movement constituted a part of the loading procedure and whether or not Miller either directed or participated in the movements of the caterpillar, and whether Weeshoff’s employees may or may not have been proximately negligent, or whether Miller may or may not have been contributorily negligent, should appear as findings which the trial court should have but did not make. There are important conflicts in the facts which the trial court did not resolve and there is no finding which fixes negligence with specificity.
The fact is that a ramp was built and apparently completed to load the tractor. The stipulated facts do not nor do the depositions show specifically whether Miller participated in building the ramp. The depositions of Harbor employees indicate that they did the work to prepare the ramp. However, the stipulated facts state that Miller gave “. . . whatever assistance he could . . .’’in building the ramp and washing the engine and that when he had “. . . overheard . . . that the caterpillar was . . . to be loaded, he started walking toward the Owl trailer. [Tjhereafter . . . the tractor came into contact with the body of . . . Miller, . . .”
Miller stated in his deposition that he walked back to his trailer “To get on my trailer, to direct him in driving the tractor on.” Apparently, the tractor had to make a turn before it could go the final distance to complete the loading thereof on the trailer, and Miller intended to guide the tractor to its resting place on the trailer. Abridge stated that he and Grossenbach had been washing the tractor when he got off, and having finished the job, he “. . . told LeRoy to load the Cat and got down and went to turn the water off.” (Italics added.) At another point, Abridge was asked whether he had testified that he had “. . . ordered LeRoy to move that Cat at the time he did so . . . and Akridge’s answer was “I told him to go ahead and load the Cat, yes.” (Italics added.) Abridge also testified as to the ordinary loading operation in stating, as to Miller’s role that it was “ordinarily the driver of the truck” who directs the tractor onto the truck. It would seem fairly clear from Akridge’s deposition alone, if not Miller’s and Grossenbach’s, that the tractor ran over Miller while it was being backed onto the loading ramp, and it may be a fair inference that Miller was proceeding to the truck in order to direct the loading process. Abridge, it might be *572parenthetically noted, also opined that the accident was due to- Miller’s negligence.
The majority concede in effect that the doctrine of Glens Falls Ins. Co. v. Globe Indem. Co., 276 Cal.App.2d 643, 646-647, supra, does apply to the facts at bench, that the amendment of section 11580.1, subdivision (b) of the Insurance Code, effective as of November 23, 1970, has no retroactive application. (L. A. City Sch. Dist. v. Landier Inv. Co., 177 Cal.App.2d 744, 755 [2 Cal.Rptr. 662].) If the court finds as a fact that Miller was participating in loading operations and if Glens Falls applies, as the majority concede, then it would make no difference whether Miller, insured by Owl, was negligent or whether Weeshoff’s employees, insured, by Harbor, were negligent. Under Glens Falls, Owl and its insurer Employer’s would be responsible.
Reviewing this evidence, it is clear that the trial court had before it ample evidence upon which to frame specific findings relative to- the entire loading process: as to Miller’s involvement therein, whether it was a loading process and if not, whose negligence was the proximate cause of the injuries to Miller. The confusion noted by the majority on the nature of the required findings is, in Milton’s words, “confusion worse confounded”*: findings, I repeat, should have been entered relative to the entire loading process, and in the detail suggested. A thorough disposition of this controversy demands no- less. It should not be, and it is not, incumbent upon this court to sift through evidentiary material in order to determine whether the injury occurred in or independently of the loading process, and what the supposedly innocent party’s activity had been in that process. The trial court failed to find on the critical issues pointed out above. This court should not make them.
I therefore concur in the reversal but I would return the case to the trial court with directions to make specific findings required as indicated in the foregoing and enter judgment accordingly.
A petition for a rehearing was denied July 28, 1972, and respondent’s petition for a hearing by the Supreme Court was denied August 23, 1972. Mosk, J., and Sullivan, J., were of the opinion that the petition should be granted.
Paradise Lost, Book II, Line 995.