Brinkmann v. Liberty Mut. Fire Ins. Co.

• Decision Date: 28 June 1965
• Citation: 403 P.2d 136,63 Cal.2d 41,45 Cal.Rptr. 8
• Court: California Supreme Court
• Parties: , 403 P.2d 136 Maria BRINKMANN, Plaintiff and Respondent, v. LIBERTY MUTUAL FIRE INSURANCE COMPANY, Defendant and Appellant. L. A. 28291.

Page 8

45 Cal.Rptr. 8

63 Cal.2d 41, 403 P.2d 136

Maria BRINKMANN, Plaintiff and Respondent, v. LIBERTY MUTUAL FIRE INSURANCE COMPANY, Defendant and Appellant.

L. A. 28291.

Supreme Court of California, In Bank.

June 28, 1965.

Virgil R. Wells, Los Angeles, for defendant and appellant.

Irmas & Rutter, S. M. Irmas, Jr., and William A. Rutter, Beverly Hills, for plaintiff and respondent.

MOSK, Justice.

Albert Brinkmann was killed while driving a laundry truck owned by his employer. Defendant company had issued an insurance policy to Brinkmann in which it agreed to pay a specified sum in the event he was killed in an automobile accident. The policy contained the following exclusion: 'This insurance does not apply: (a) to bodily injury or death sustained in the course of his occupation by any person while engaged (1) in duties incident to the operation * * * of * * * a * * * commercial automobile. * * *' Plaintiff, Brinkmann's widow, brought this action to recover under the policy, and the trial court, sitting without a jury, found in her favor. Defendant appeals from the ensuing judgment, contending that the exclusion was applicable to the circumstances under which the accident occurred.

Brinkmann's duties consisted of picking up soiled laundry, delivering it to his employer's plant, and returning the laundry after it had been processed. The employer company paid for the gasoline and maintenance of the trucks. Brinkmann was paid on a weekly basis and received no compensation for overtime and, although he began work at a fixed hour, he did not conclude at a specified time. He was instructed to deliver all the clean laundry on his truck before he stopped work for the day. Most of the drivers were required to return the trucks to the employer's parking lot at the end of the day, but a few drivers were permitted to take the trucks home at night with the soiled laundry they had collected on their last run and to wait until the following morning to deliver the laundry to the plant for processing. Some time before the accident, Brinkmann requested and had received permission from his superior to take his truck home at night so that his son could use the family car. After making the last stop on his route, Brinkmann usually proceeded north on Bonnie Brae Street to his home, located at 917 North Bonnie Brae, arriving there between 6 and 7 p. m. The accident occurred at about 6:15 p. m., two blocks from Brinkmann's home, while he was driving north on Bonnie Brae.

The trial court, in concluding that the exclusionary provision of the policy did not apply, found that Brinkmann had finished his duties for the day and was on his way home after the last stop on his route when the accident occurred and that his employer had given him permission to take the truck home at night for his personal benefit and accommodation.

Defendant contends that the evidence established that Brinkmann was still working on his route when the accident occurred and that there was no evidence to support the trial court's conclusion to the contrary. In reviewing the evidence on appeal we are bound by the familiar rule that all conflicts must be resolved in favor of the findings of the trial court and all reasonable inferences indulged in their support and that the findings must be upheld if there is any substantial evidence to sustain them. (E. g., French v. Brinkman (1963) 60 Cal.2d 547, 550, 35 Cal.Rptr. 289, 387 P.2d 1; Butler v. Nepple (1960) 54 Cal.2d 589, 597, 6 Cal.Rptr. 767, 354 P.2d 239; Crawford v. Southern Pac. Co. (1935) 3 Cal.2d 427, 429, 45 P.2d 183; see cases collected in 3 Witkin, Cal. Procedure, Appeal, § 84, p. 2246.) The fact that the accident occurred two blocks from Brinkmann's home, at the approximate hour he usually returned, while he was driving in the direction and on the street he customerily used to get there, amply justified the trial court's conclusion that he was on his way home when he suffered the injuries leading to his death. Defendant relies on testimony from which it could be inferred that on the day of the accident Brinkmann had failed to make a stop on his route to deliver some clean laundry, which was found in the truck after the accident. Although this testimony could be viewed as some indication that Brinkmann was still working on his route at the time of the accident, the inference is by no means compelled. It is equally consistent with a number of other theories, such as that he had overlooked the bundle of clean laundry or that he had disobeyed his employer's instructions to deliver all the clean laundry before going home. In any even, this was a factual conflict resolved by the trial court.

It is also argued that the exclusionary clause is applicable even if the evidence is sufficient to show that Brinkmann was on his way home when the accident occurred. Defendant contends that Brinkmann had an implied duty to care for the truck until it was in a safe parking place for the night and that he was therefore engaged, as a matter of law, in duties incident to the operation of a commercial automobile at the time of the accident, within the meaning of the exclusionary provision.

As we have seen, the trial court found that Brinkmann had completed his duties for the day when the accident occurred. In determining whether this conclusion may be upheld, it is important to keep in mind that we are dealing here with an exclusionary provision of an insurance policy and that such provisions must be construed strictly against the insurer and liberally in favor of the insured. (Freedman v. Quenn Ins. Co. of America (1961) 56 Cal.2d 454, 457, 15 Cal.Rptr. 69, 364 P.2d 245; Visco Flying Co. v. Hansen & Rowland, Inc. (1960) 184 Cal.App.2d 829, 835, 7 Cal.Rptr. 853.) There was no evidence relating to Brinkmann's responsibility for the care of the truck, but defendant claims that an obligation to see that it was safely parked for the night must be implied because Brinkmann would not have been permitted to abandon his truck at the point of his last stop. Defendant also relies upon testimony to the effect that the overnight arrangement resulted in some benefit to the...