Getlin v. Maryland Cas. Co.

• Decision Date: 28 April 1952
• Docket Number: No. 13046.,13046.
• Citation: 50 ALR 2d 73,196 F.2d 249
• Parties: GETLIN v. MARYLAND CAS. CO.
• Court: U.S. Court of Appeals — Ninth Circuit

50 ALR 2d 73, 196 F.2d 249 (1952)

GETLIN v. MARYLAND CAS. CO.

No. 13046.

United States Court of Appeals Ninth Circuit.

April 28, 1952.

Anderson & Franklin and W. A. Franklin, Portland, Or., for appellant.

Cake, Jaureguy & Tooze and Herbert C. Hardy, Portland, Or., for appellee.

Before STEPHENS, HEALY and GOODRICH^*, Circuit Judges.

GOODRICH, Circuit Judge.

This appeal raises the question of the interpretation of an exemption clause in a liability insurance policy. The defendant insurance company won in the court below and the plaintiff appeals.

The factual background is uncomplicated and undisputed. At the time of the accident out of which this litigation arose Harold M. Kalahar was the owner of a Chevrolet station wagon. Kalahar hired various persons in Iowa and Nebraska for the purpose of soliciting magazine subscriptions in various towns from state to state throughout the western United States. One of the persons he hired for this purpose was Corinne Getlin for whose estate the present plaintiff is administrator. Kalahar furnished free transportation to the solicitors from state to state and city to city. He designated one Philip Rodgers, also a member of the soliciting group, as driver of this Chevrolet station wagon. On August 31, 1947, Rodgers drove the station wagon from Spokane, Washington, where the group had been soliciting subscriptions, to Portland, Oregon, where they were going to do like soliciting. This transportation was "pursuant to their respective contracts of employment with Kalahar."¹

There was an accident on the way. In this accident Mrs. Getlin was killed. Suit was brought in a state court in Oregon against Rodgers and Kalahar and a judgment recovered.

Kalahar had purchased from the defendant a liability insurance policy. Upon the failure of either Rodgers or Kalahar to pay the judgment against them, plaintiff sued the insurance company which had issued the liability insurance policy to Kalahar.

The whole controversy in this case turns around an exclusion clause in the policy. It provided that the policy did not apply "to bodily injury or death of any employee of the insured while engaged in the employment, * * * of the insured * * *." The question in the case, then, is whether Mrs. Getlin, when she was riding in this car from Spokane to Portland under the circumstances already indicated, was engaged in the employment of Kalahar.

The case is in federal court by diversity of citizenship only. The law of the state in which the court sits must apply. We no longer need to cite the innumerable authorities since Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. And if the case is one, as here, involving foreign elements, the local rule of conflict of laws applies. Klaxon Co. v. Stentor Electric Mfg. Co., 1941, 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477. The parties are vague about where this insurance contract was entered into. From inspection of some photostatic copies of the policy furnished the court, it would appear that while the company is a Maryland corporation, this policy was countersigned in Texas where the insured's address is given in a Dallas, Texas, office building. The general rule with regard to the effect of a contract is that it is governed by the law of the place of contracting. Restatement, Conflict of Laws, § 332. Neither party has emphasized Texas decisions on this subject, however, and they appear to agree that the problem is one where we find both the Oregon conflict of laws rule and the Texas insurance rule from the material at hand as best we can.

When the facts of this case are considered with an eye to the exclusion clause in the insurance policy, it becomes pretty clear that Mrs. Getlin was, in the words of the policy, "engaged in the employment * * * of the insured * * *" at the time she met with her unfortunate accident. The plaintiff would, naturally, have us conclude the contrary. He argues that Mrs. Getlin was not engaged in her employment of soliciting subscriptions at the time of the accident for she was passively sitting in the car driven by another. She must have been actively doing soliciting, it is urged, to be "engaged" in employment.

But suppose one checks for a few instances the application of the plaintiff's theory. Suppose, for instance, Mrs. Getlin starts out in Portland to solicit subscriptions through a given block. As she steps from the bus to the sidewalk, the question is: Is she engaged in the defendant's employment? Now suppose she starts up the walk to the steps of the house where she is about to ring the bell and solicit subscriptions from the householder Can it be seriously contended that she is not engaged in her employment until the door opens and she starts her sales talk?

Now suppose she finishes her solicitation in one block and waits at the curb for a bus to take her to the next section of the city which has been assigned to her. Is she engaged in her employment when she goes from the thirteenth to the twenty-first ward of the city? If she is so engaged when she takes public transportation to get from one place to the other, can it be any less engaging in employment if she is picked up by Rodgers in Kalahar's car and driven to the part of town where she was next to solicit subscriptions?

It seems to us abundantly clear that in each of these cases Mrs. Getlin and other members of her crew would have undoubtedly been "engaged in the employment." Moving from house to house and street to street is certainly an integral part of any door to door canvassing job. It seems to us equally clear that, if at the expense of the employer, the group of people who are engaged in such solicitation in places selected by the employer are being moved from one town to another, the employees, while so being moved, are engaged in their employment.

We do not think any distinction can be made between transportation from street to street and from town to town when the destination...