Duffer v. American Home Assur. Co.

• Decision Date: 12 May 1975
• Docket Number: No. 74-2037,74-2037
• Citation: 512 F.2d 793
• Parties: Patricia D. DUFFER, Plaintiff-Appellee-Cross-Appellant, v. AMERICAN HOME ASSURANCE COMPANY, Defendant-Appellant-Cross-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 793

512 F.2d 793

Patricia D. DUFFER, Plaintiff-Appellee-Cross-Appellant, v. AMERICAN HOME ASSURANCE COMPANY, Defendant-Appellant-Cross-Appellee.

No. 74-2037.

United States Court of Appeals Fifth Circuit.

May 12, 1975.

E. Lawrence Merriman, Texarkana, Tex., for defendant-appellant-cross-appellee.

Dale Edwards, Texarkana, Tex., for plaintiff-appellee-cross-appellant.

Appeals from the United States District Court for the Eastern District of Texas.

Before WISDOM and DYER, Circuit Judges, and KRAFT ^*, District Judge.

C. WILLIAM KRAFT, Jr., District Judge.

American Home Assurance Company (insurer) here appeals from an adverse judgment obtained by Patricia D. Duffer (beneficiary) in her suit upon a group travel insurance policy issued by the insurer to Temtex Leisure Vehicles, Inc., a subsidiary of Temtex Industries, Inc. (employer), covering all the employer's officers, managers and sales personnel under age seventy.

The beneficiary had been so designated by her husband, E. C. Duffer, III (insured), who was killed in a motor vehicle collision on November 27, 1972. At the time of his death the insured was Controller of the employer and, so, an insured subject to the terms of the policy then in force, the provisions of which presently pertinent appear below. ¹ The insurer's appeal challenges numerous findings of the trial court, to which the case was tried without jury. The beneficiary's limited cross appeal raises a single question. In this diversity action the law of Texas governs these questions.

Insurer's first contention is that the trial court erred in finding that the insured was, at the time of his death, "on assignment by or at the direction of the" employer, ² within the meaning of the policy definition. The evidence of the nature of insured's position as Controller and the testimony of Marry Ward were sufficient to support this finding.

The next contentions of the insurer are that the trial court erred in finding that, at the time of his death, the insured was engaged in travel: (a) "for the purpose of furthering the business of ..." his employer ³; (b) but was not engaged in "the course of every day travel to and from work ..." ⁴; "on the business" of his employer ⁵; (d) and was in "the course of a 'bona fide trip.' " ⁶

The facts so found by the trial court are ultimate facts and it becomes necessary to examine the trial testimony to determine whether that was sufficient to have permitted the trial court to have found, directly or by reasonable inference, underlying facts essential to support the ultimate facts so found.

Our review discloses that insured had a bachelor's degree in finance and accounting and was continuing study to be certified as a CPA. After army service, he was first employed as an accountant by the predecessor of Monnfield Industries. When the latter was acquired by Temtex Industries, as a subsidiary, he remained and was promoted to Assistant Controller. Later, about April 1, 1972, he was offered and accepted the position of Controller of Temtex Leisure Vehicles, Inc., another subsidiary of the same corporate parent. Between April and July, 1972, insured travelled about 130 miles daily between his home in Garland and his work outside Malakoff, Texas. During that period, because his new employer was getting into production in a new plant, he worked long hours and seldom came home to dinner. In early July he moved to a mobile home in Athens, Texas, about 8 miles from his work, while building a new home in Malakoff, into which he moved in September, 1972. His new home, where he resided until his death, was between 3 and 4 miles from his work. His long hours of work continued until early November 1972, when the employment of a new General Manager and an accountant-bookkeeper materially lightened his burden. Thereafter his usual hours of employment at the plant were 8:00 A.M. to 5:00 P.M. and, generally, he left home around 8:00 A.M. and returned around 6:00 P.M. On occasion, but not regularly, he would return to the plant in the evening to do additional work. On Monday nights it was his custom, in season, to watch Monday Night Football at home at 8:00 P.M.

Claude Smart, Purchasing Agent of the employer, had his office near the insured's office. Neither Smart nor the insured then routinely returned to employer's plant for additional work in the evening, though, occasionally, they did so on special assignments or when unusual circumstances indicated such need.

In the afternoon of Monday, November 27, 1972, an audit in process and an inventory taken having disclosed a shortage of materials, Smart and the insured discussed the problem and agreed to return to the plant together that evening to search for the missing material and, if unsuccessful, to prepare to take another inventory. Later, as they left employer's building, they decided to go home together, dine, go to feed deer and then return to the plant. However, they encountered Mrs. Smart in the employer's parking lot. She wanted her husband to go with her to meet a realtor and to look at a house with a view to possible purchase. Smart and the insured then changed their plans. They agreed that Smart should go with his wife, look at the house, get a sandwich nearby and be picked up later by the insured at the realtor's parking lot; that insured would go home, dine and pick up Smart at the realtor's parking lot. The insured drove home but did not dine, because his wife and one child were ill and dinner had not been prepared. After a short interval he left his home, intending to pick up Smart at the realtor's parking lot. The pick-up of Smart would have required a deviation of about one mile from the direct route between insured's home and the employer's plant. Insured intended to then go with Smart to the employer's plant for the purpose previously agreed. Whether the insured and Smart would have gone first to feed deer is uncertain, because the deer feeding and observation required sufficient daylight to see whether food previously left had been touched and to note the number of deer tracks in feeding area. En route from his home to the realtor's office the insured met his death in an auto collision about 6:00 P.M.

We conclude that this testimony, uncontradicted for the most part and accepted as credible by the trial court, was sufficient to have permitted the trial court to find the underlying facts supportive of the ultimate facts it found. Certainly, its ultimate findings were not clearly erroneous.

The insurer strongly presses its argument that the travel in which decedent was engaged at the time of his death was "every day travel to and from work," which, under the policy definition, "shall not be deemed to be ... while on the business of ..." the employer. The trial court found this language to be ambiguous and, so, construed it most favorably to the beneficiary. On this score we disagree both with the insurer and the court below. Had the policy intended to exclude all travel to and from work or all travel between home and place of employment it could have done so simply. The modifying words "every day" before the phrase "travel to and from work" cannot be disregarded as meaningless, but must be given their plain, ordinary and generally accepted meaning. Western Reserve Life Insurance Company v. Meadows, 152 Tex. 559, 261 S.W.2d 554, 557 (1953).

In the context of the policy provisions we opine that the phrase "every day travel to and from work" means travel between the insured's home and his regular place of employment for the sole purpose of reaching either destination on days and at hours normally related to his regular hours of employment. We approve the finding of trial court, because it is evident that insured's intended travel to his place of regular employment on this Monday evening was after he had completed his normal hours of employment and had returned to his home, where, ordinarily, he would have remained to watch a football game on television. His travel to meet and pick up the purchasing agent, Smart, was for the purpose of endeavoring to ascertain the cause of an inventory shortage, scarcely an every day event, which had only been discovered that afternoon. Moreover, in going from his home to pick up Smart, the insured was obliged to deviate about one mile from his usual direct course to his employer's plant.

Counsel have cited no Texas cases construing this or substantially similar language. Insurer's counsel has cited two federal district court cases with which we do not disagree.

Morningstar v. Insurance Company of North America (D.C.S.D.N.Y.1969), 295 F.Supp. 1342, dealt with a policy, which provided, "commutation travel is excluded from coverage." Recovery was there permitted for the death of the insured, who usually commuted between his home and his office, but who, on the morning of his death, deviated from his normal route to go to the office of General Foods for a business purpose while en route to his own office. The court decided that the insured's deviation, for a business purpose, prevented his trip from home to office from being commutation travel.

Ligo v. Continental Casualty Company (D.C.W.D.Pa.1972), 338 F.Supp. 519, involved a policy which contained a provision excluding "everyday travel to and from work." There, too, recovery was permitted for the death of an insured, who left his home in the morning for his work at the main office of his bank employer, but deviated from the usual course of travel to pick up certain items at a branch bank for delivery at his place of employment, as directed by his employer. He was killed en route to the branch bank. The court held the trip did not constitute everyday travel to his work, because the trip required that deviation.

The following language used by the court in Ligo, supra, is urged upon us by the insurer: "The exclusion 'everyday travel to and from work' was intended to apply to one travelling from his home to his place...