Auto Owners Mut. Ins. Co. v. Wieners
| Decision Date | 30 April 1990 |
| Docket Number | 15944,Nos. 15925,s. 15925 |
| Citation | 791 S.W.2d 751 |
| Parties | AUTO OWNERS MUTUAL INSURANCE CO., Plaintiff-Respondent, v. Darold WIENERS, Sr., and Zella May Wieners, Defendants-Appellants, and Edward Black and Mary Black, Defendants. AUTO OWNERS MUTUAL INSURANCE CO., Plaintiff-Respondent, v. Darold WIENERS, Sr., and Zella May Wieners, Defendants, and Edward Black and Mary Black, Defendants-Appellants. |
| Court | Missouri Court of Appeals |
Craig S. Johnson, Stockard, Andereck, Hauck, Sharp and Evans, Jefferson City, for plaintiff-respondent.
James D. Sickal, Waynesville, for Wieners.
William C. Morgan, Waynesville, for Blacks.
Plaintiff, Auto Owners Mutual Insurance Co. (Auto Owners), issued its Special Multi-Peril Policy to Edward Black and Mary Black. (Blacks). That policy included Section II Liability Coverage for their liability arising out of the ownership, maintenance or use of the insured premises and "all operations necessary or incident to the business of the named insured conducted at or from such premises." Florence Wieners died as the result of a fireworks conflagration on the described premises. In a petition to recover for her death, defendants Darold Wieners, Sr., and Zella May Wieners, his wife, (Wieners), alleged the Blacks were legally liable for their daughter's wrongful death. In this declaratory judgment action, Auto Owners alleged that Florence Wieners was an employee of the defendants within the meaning of an exclusion in the provisions of the liability coverage of said policy. On that basis, Auto Owners sought a judgment declaring the policy provided no coverage for the death of Florence Wieners and that Auto Owners was not obligated to defend the wrongful death action. In accordance with a jury verdict, the trial court entered judgment for the plaintiff. The Wieners and the Blacks (appellants) have appealed. Their appeals have been consolidated for consideration and disposition. They have filed a joint brief.
Edward Black and Mary Black were the only witnesses at trial. The basic facts are few. Starting in September 1985, the Blacks owned and operated a business in a newly-constructed building on Missouri Highway 7 near Interstate Highway 44. In that business, the Blacks sold gasoline and related automotive products, groceries, and package liquor. On week days the business was open from 6 a.m. until 10 p.m.; on Sunday from 8 a.m. to 10 p.m. The business was operated in a 60 feet room on the west end of a concrete block building 40 by 80 feet. Two 20 by 20 feet rooms were located on the east end. The southern 20 by 20 feet room contained restrooms and showers. The northern 20 by 20 feet room was roughed in for use as a laundromat. The Blacks lived in the immediate vicinity of the business. They took turns working in shifts and had hired no additional help.
In June 1986, they decided to sell fireworks. They obtained a fireworks permit for the period June 21 to July 10, 1986. Edward Black picked up the fireworks at a wholesaler near Springfield. The first purchase was placed in stock with the other merchandise. As Edward Black put it, "I stuck them on the shelf and begun [sic] to sell them." However, a fireworks inspector told the Blacks the fireworks had to be 50 feet from the gasoline pumps. They were moved to and were to be sold from the separate laundromat room on the east end of the building. It was not practical for the person running the usual business to sell fireworks from that room.
The testimony of the Blacks concerning the employment of someone to assist in the sale of fireworks was, to some extent, self-contradictory. The testimony of Mary Black on direct examination was essentially to the following effect. She and her husband discussed having their 12-year-old son, Doug, handle the fireworks business. But, because of the location of that business, she and Edward decided to hire someone to help. Edward left the hiring up to her. Mary planned on hiring two people to work successive six-hour shifts, from 10 a.m. to 4 p.m., from 4 p.m. to 10 p.m. She talked with Christy Bush. She agreed to pay her $3 per hour. She talked to Jennifer Wieners, a sister of the deceased. Jennifer already had a job. She then had two telephone conversations with Florence Wieners. She assumed she told Florence it would be a three-week job. Florence did not want the work to interfere with Church on Sunday or Wednesday night. Mary Black did not discuss with Florence the rate of pay, as that topic did not come up.
It was the position of the defendants that Florence had not been hired but was at the premises to try out. Alternatively, if hired, her job was to babysit with Doug. Mary Black's testimony on cross-examination, primarily in response to leading questions, included the following. The fireworks business was for Doug. But, he needed someone to make change. Florence Wieners was coming to the business to see if she could handle the job. She did not intend to hire Florence until she saw that Florence could handle the job. Mary Black said Florence was properly described as a prospective employee.
On re-direct, Mary Black acknowledged that she knew Florence was to be there at 4 p.m. Florence was providing a service in the operation of the business. She would have paid Florence, even though she hadn't hired her.
Edward Black testified that it was his decision to sell fireworks. He and his wife thought Doug needed help. He and Mary decided to get help and Mary had authority to do so. Mary got Christy and Florence to work. Christy and Florence were there to sell fireworks "[o]r look after Doug, whichever way you want to phrase it."
The appellants base more than one of their arguments upon the acceptance of the testimony of Mary Black and Edward Black elicited upon cross-examination. It is appropriate at this point to observe that the testimony of the Blacks is to be considered in accordance with the following rule.
"When a party calls a witness who comes within the adverse witness rule, the party is bound by the testimony of such witness adduced on direct examination if the testimony is uncontradicted or is the only evidence on the subject; however, testimony adduced on cross-examination of an adverse witness is not binding on the calling party." Hurlock v. Park Lane Medical Center, Inc., 709 S.W.2d 872, 879 (Mo.App.1985).
Also see Hosmer v. Hosmer, 611 S.W.2d 32 (Mo.App.1980).
On the tragic day of June 21, 1986, Edward's daughter by a prior marriage and her son Tab were visiting the Blacks. Tab's age is not shown. Christy Bush came to the fireworks business at approximately 10 a.m. Mary instructed her on her duties. Florence came at approximately 4 p.m. Mary Black went with Florence to the fireworks business room. She reconciled the sales slips and cash register tape for the period that Christy had worked. She instructed Florence on how to keep the sales slips and cash register tape.
The whereabouts of Doug during the day of the tragedy are not clear. At one time when Christy was working, Doug went to the bank with his father. The accident occurred about 5 p.m. At that time, Mary Black was at her home. The record, by inference, establishes that Edward Black was in the room where the usual business was conducted. The record does not show where Doug and Tab were at that time.
The provisions of Section II Liability Coverage directly applicable read as follows.
"I. BODILY INJURY LIABILITY PROPERTY DAMAGE LIABILITY
The Company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay by reason of ...
the ownership, maintenance or use of the insured premises including the ways immediately adjoining on land and all operations necessary or incidental to the business of the named insured conducted at or from such premises ...
Exclusions
This insurance does not apply
* * * * * *
(g) to bodily injury to any employee of the insured arising out of and in the course of his employment by the insured...."
The appellants' basic point is that the trial court erred in giving the verdict directing instruction offered by Auto Owners. That instruction reads:
Your verdict must be for plaintiff Auto Owners Mutual Insurance Company if you believe First, at the time of her death, Florence Wieners was an employee of defendants Edward and Mary Black; and
Second, the death of Florence Wieners was an event arising out of and in the course of her employment with defendants Edward and Mary Black.
As used in this Instruction, the term 'employee' means a person in the service of an employer under any contract of hire, express or implied, oral or written.
The death of Florence Wieners was an event 'arising out of her employment', as that phrase is used in this Instruction, if it occurred within the period of employment at a place where she could reasonably be expected to be in fulfilling the duties of her employment, or engaged in the performance of some task incidental to that employment.
The death of Florence Wieners was an event 'in the course of her employment', as that phrase is used in this Instruction, if there is a causal connection between the conditions under which the work is required to be performed and the resulting death."
The appellants' first contention under that point is that the instruction submits an improper definition of the term "employee". They state the definition given is that applicable in determining workers' compensation coverage. They argue that this liberal definition reflects the policy of the law to extend the benefits of workers' compensation to the largest possible number of workers. However, they argue, the exclusion should be construed against the company and the term "employee" construed to exclude only a narrowly-defined class. They rely upon the definition in ...
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