Campbell v. American Farmers Mutual Insurance Co.
| Decision Date | 20 November 1956 |
| Docket Number | No. 15572,15574.,15572 |
| Citation | 238 F.2d 284 |
| Parties | Joan CAMPBELL, Appellant, v. AMERICAN FARMERS MUTUAL INSURANCE COMPANY, a corporation, Appellee. REORGANIZED SCHOOL DISTRICT NO. 1 OF GRAY RIDGE, MISSOURI, and Larry McCoy, Appellants, v. AMERICAN FARMERS MUTUAL INSURANCE COMPANY, a corporation, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Rush H. Limbaugh, Cape Girardeau, Mo., and Clarence A. Powell, Dexter, Mo. (Phillips & Phillips, Poplar Bluff, Mo., and Limbaugh & Limbaugh, Cape Girardeau, Mo., on the brief), for appellants.
David E. Blanton, Sikeston, Mo. (Blanton & Blanton, Sikeston, Mo., on the brief), for appellee.
Before GARDNER, Chief Judge, and WOODROUGH and VOGEL, Circuit Judges.
The American Farmers Mutual Insurance Company, plaintiff (appellee), brought this action for a declaratory judgment against Reorganized School District No. 1 of Gray Ridge, Missouri, Larry McCoy and Joan Campbell, defendants (appellants), asking that it be found not obligated by a policy of liability insurance to defend and hold harmless in an action for personal injuries arising out of an automobile accident. The District Court decided in favor of the plaintiff-appellee. After motions for a new trial were overruled, the defendants separately appeal. By stipulation the appeals have been consolidated here. The parties will be referred to as they were in the court below.
Defendant Reorganized School District is a quasi corporation organized to provide public education within prescribed territorial limits. Defendant Joan Campbell was a teacher employed in a rural area by the School District. She lived at Gray Ridge, Missouri. It was customary practice and the understanding at the time of employment that she would be furnished free transportation on school buses from her home at Gray Ridge to the Trotter School, where she was employed, and return. Defendant Larry McCoy was a regular bus driver employed by the School District. While returning to Gray Ridge at the end of her day's teaching, Miss Campbell was injured when a school bus driven by McCoy and in which she was riding left the traveled portion of a public road.
At the time of the accident, there was an effective policy of liability insurance issued to the School District covering the school bus in which Miss Campbell was riding. The policy contained the usual provision for payment on behalf of the insured for damages by reason of bodily injury sustained by any person arising out of the use of the school bus and for which the insured was legally liable. The plaintiff contended that neither the School District nor McCoy was covered by the policy because exclusion clause (d) states that the insurance does not apply to "* * * bodily injury * * * of any employee of the insured while engaged in the employment * * * of the insured * * *". Plaintiff's liability under its policy is, then, dependent upon Miss Campbell being adjudged not an employee at the time of the injury.
Miss Campbell filed suit in state court against McCoy and the School District. The state court, on motion made by attorneys employed by the insurance company, dismissed the action against the School District, apparently on the ground that it was a quasi corporation having governmental immunity but denied the motion as to McCoy. The insurance company then refused to defend the action on behalf of McCoy, denying liability under the policy. A declaratory judgment was requested in the Federal District Court by the insurance company to confirm this position and such declaratory judgment was granted.
The overriding objection of the defendants on appeal is that the trial court erred in finding clause (d) excluded coverage for the injuries sustained by Miss Campbell because the District Court deemed her an employee of the insured and, "engaged in the employment * * of the insured" at the time of the accident.
Defendants rely upon a number of cases which construe employment to mean present and active work at the time of the accident. Chief among these is B. & H. Passmore Metal & Roofing Co., Inc., v. New Amsterdam Casualty Co., 10 Cir., 1945, 147 F.2d 536. As the District Court pointed out, however:
"A greater number of cases have emphasized the status of the employee at the time of the accident and have accordingly held that where the transportation is furnished as an express or implied term of the employment, the employee, while riding to and from work, is engaged in the business of the insured."
The District Court stated:
"In the present case, considering the distance to the school from defendant Campbell\'s home, and the fact that she had no other means of transportation, it was at least an implied term of the contract of employment that she be furnished transportation — if indeed the promise of the superintendent of the School District did not make it an express term."
The court was, of course, bound by the law of the State of Missouri. This court, in interpreting a similar exclusion clause, had occasion to examine the law of Missouri in State Farm Mutual Auto. Ins. Co. v. Brooks, 8 Cir., 1943, 136 F.2d 807, certiorari denied 320 U.S. 768, 64 S.Ct. 80, 88 L.Ed. 459. That is the only case interpreting Missouri law as to the particular exclusion clause here involved. In that case, two boys were injured, one fatally, while riding home after the day's work. This court held that they were engaged in employment within the meaning of the exclusion clause. The defendants argue that that case is not comparable nor should it be controlling here because evidence of actual employment at the time of injury was stronger in that case. However, the holding in the Brooks case was based upon the fact that the employees were returning from their place of employment to their home at the time of the injury — the exact factual situation in the instant case.
This court said in the Brooks case, 136 F.2d at page 811:
"Here the boys had no other means of getting to the slab pile and their transportation back and forth was contemplated in the contract of employment and was a necessary part of the insured\'s business."
Here Miss Campbell had no other means of getting from her home to the school and back. Her transportation was contemplated by the parties and it was a necessary part of the insured's business. In construing the law of Missouri, this court, in the Brooks case, relied in part on Sylcox v. National Lead Co., 1931, 225 Mo.App. 543, 38 S.W.2d 497, 499, quoting the following therefrom:
"`If the right to transportation is given, either positively or inferentially, by the terms of the contract, the employment begins when the employee boards the bus to go to the scene of his labor; it continues throughout the entire period of transportation; and it terminates when he leaves the bus. * * * the courts hold almost unanimously that, even though the employee is not paid for the time spent on the bus, he is yet in the course of his employment, if he rides by the employer\'s order, or with his knowledge and acquiescence * * * that transportation to and from work may well be one of the incidents of the employment, and an accessory, collateral, or subsidiary part of the contract * * *.\'"
See also Howes v. Stark Bros. Nurseries and Orchards Co., 1930, 223 Mo.App. 793, 22 S.W.2d 839; Johnson v. Aetna Cas. & Sur. Co., 5 Cir., 1939, 104 F.2d 22.
Defendants argue that workmen's compensation cases such as the Sylcox case should not be controlling here. The Kansas City Court of Appeals (Missouri) nevertheless used such cases, including the Sylcox case, in interpreting the language of a somewhat similar clause contained in a group accident policy. Gage v. Connecticut General Life Ins. Co., Mo.App.1954, 273 S.W.2d 761, 763. From this it would seem that both the Missouri courts and this court are in agreement in relying upon Missouri workmen compensation cases in determining when an employee is engaged in his master's employment in situations similar to that with which we are here concerned, and we see no reason to depart from that reliance.
As a further indication of what the Missouri law is on the question of employment, attention is directed to the case of Garbo v. P. M. Bruner Granitoid Co., Mo.App.1952, 249 S.W.2d 477, at pages 479-480:
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