Home Indem. Co. of N.Y. v. Village of Plymouth
| Decision Date | 12 December 1945 |
| Docket Number | 30357. |
| Citation | 64 N.E.2d 248,146 Ohio St. 96 |
| Parties | HOME INDEMNITY CO. OF NEW YORK v. VILLAGE OF PLYMOUTH et al. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
1. An employee is a person who works for another for salary or wages, and the term is usually applied only to clerks workmen and laborers, and rarely to the higher officers of a corporation or government or to domestic servants.
2. Where exceptions, qualifications or exemptions are introduced into an insurance contract, a general presumption arises to the effect that that which is not clearly excluded from the operation of such contract is included in the operation thereof.
3. A street commissioner of an Ohio village is not an 'employee' of the village within the purview of an insurance contract which provides that the insured village or others in certain cases, shall be indemnified for all sums which the village or such others shall become obligated to pay by reason of injury or death arising out of the use of a truck, and which provides that such contract does not apply to an additional insured, where he and the person injured or killed are employees of the village or to the village, where the person injured or killed is its employee.
Appeal from Court of Appeals, Richland County.
The Home Indemnity Company of New York, on April 2, 1942, issued its policy of insurance covering a truck owned by the defendant, the village of Plymouth, whereby the former agreed to pay on behalf of the latter all sums which it should become obligated to pay by reason of any liability imposed upon it by law for damages resulting from bodily injury or death sustained by any person, with certain exceptions and limitations hereinafter noted, which was caused by accident and arose out of the ownership or use of the truck; and to defend any suit against the insured based on such injury or death and seeking damages on account thereof, even though such suit should have been groundless, false or fraudulent. By the terms of the policy in question, the word 'insured,' wherever used in the policy and when applicable to the coverage therein provided, included any person while using the truck and any person legally responsible for the use thereof, provided such actual use was within the types of use covered and was with the permission of the named insured.
However, these provisions as to the additional insureds, under the express terms of the policy, did not apply to any employee of the insured with respect to any action because of bodily injury to or death of another employee of the same insured occurring in the course of his employment in an accident arising out of the use of the automobile in the business of the insured; and, the provisions as to the insured did not apply to bodily injury to or death of any of its employees while engaged in the insured's business other than domestic employment, or while engaged in the operation of the automobile.
On February 24, 1943, while the above-described insurance contract was in force, Fred Grafmiller, an employee of the village of Plymouth, in operating the truck in question for the village at the municipal dump on land rented by the village for that purpose, injured Otis Ervin Moore who later died from such injury. At the time of his injury, Otis Ervin Moore was the duly appointed street commissioner of the village of Plymouth and was engaged in performing the duties of his office.
Pauline Moore, as administratrix of the estate of Otis Ervin Moore, commenced an action for damages in the Common Pleas Court of Richland county against Grafmiller for the alleged wrongful death of her decedent, resulting from the operation of the truck by Grafmiller.
While that action was pending, The Home Indemnity Company instituted this action in the Common Pleas Court of the same county against the village of Plymouth, Pauline Moore, as administratrix of the estate of Otis Ervin Moore, deceased, and Grafmiller, seeking a declaration that it was not obligated to defend Grafmiller in the original suit or to pay any judgment in case one should be rendered therein against him. Defendant Pauline Moore, as administratrix, filed an answer alleging that the injury and subsequent death of her decedent were due to the operation of the truck by Grafmiller as an employee of the village while engaged in the course of his employment, and prayed that a declaratory judgment be rendered in this action to the effect that The Home Indemnity Company is obligated to pay any judgment that she, as administratrix, may recover against defendant Grafmiller.
Defendant village of Plymouth also filed an answer admitting that defendant Grafmiller was its employee and that the death of Moore occurred in an accident arising out of the use of the automobile in question, but denying all other material allegations of the petition. The defendant village affirmatively alleged that it had paid the premiums on the insurance policy in question, and that in consideration thereof the plaintiff agreed to defend any action and to pay any judgment arising out of the authorized use of the automobile. The prayer of the answer is that plaintiff's petition be dismissed insofar as it affects defendant village. No issue was made in this case as to the applicability of the Uniform Declaratory Judgments Act.
A jury being expressly waived by the parties, the trial court found 'that at the time of the accident complained of, Otis Ervin Moore was an official of the village of Plymouth, Ohio, and was not an employee within the meaning of the policy of insurance issued by the plaintiff to the defendant, the village of Plymouth, Ohio,' and that the plaintiff, under the terms of the contract of insurance, was obligated to defend Grafmiller in the suit against him and to pay any judgment rendered against him within the limits of the amount of the insurance policy.
The plaintiff appealed to the Court of Appeals wherein the judgment of the Common Pleas Court was reversed and a declaratory judgment rendered to the effect that the plaintiff, as insurer, was not obligated, under the provisions of the policy of insurance, to defend Grafmiller or to pay any judgment rendered against him.
The cause is now in this court for review by reason of the allowance of a motion to certify the record.
C. W. Chorpening, of Ashland, and Donald Akers, of Plymouth, for appellant.
Henkel & Gongwer, of Mansfield, for appellee.
Defendant Pauline Moore, as administratrix of the estate of Otis Ervin Moore, claims that Otis Ervin Moore was an officer and not an employee of the village of Plymouth at the time of his injury resulting in his death, and that as a result Grafmiller, as driver of the truck with the consent of the owner, the village of Plymouth, was covered and protected by the insurance policy issued by the plaintiff to the defendant village.
On the other hand, the plaintiff contends that it is not obligated to defend the action brought by the administratrix of the deceased street commissioner of the village of Plymouth against Grafmiller, an employee of that village, for the reason that the policy stipulated that it does not apply with respect to any action brought against an employee of the insured because of bodily injury to or death of another employee of such insured and for the reason that in its exclusion of insurance coverage the policy provided that it does not apply to bodily injury to or death of an employee of the insured, while engaged in the business, other than domestic employment, of the insured. The plaintiff concedes that Moore was an officer of the village, but claims that,...
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