Hall v. U.S. Fidelity & Guaranty Co.

• Decision Date: 09 October 1957
• Parties: , 79 Ohio Law Abs. 321, 7 O.O.2d 344 Dr. Joseph C. HALL, Plaintiff-Appellee, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Nationwide Mutual Insurance Co., Defendants-Appellants, Elmer L. Burley, Defendant-Appellee.
• Court: Ohio Court of Appeals

Page 13

107 Ohio App. 13

155 N.E.2d 462, 79 Ohio Law Abs. 321, 7 O.O.2d 344

Dr. Joseph C. HALL, Plaintiff-Appellee, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Nationwide Mutual Insurance Co., Defendants-Appellants, Elmer L. Burley, Defendant-Appellee.

Court of Appeals of Ohio, Mahoning County.

Oct. 9, 1957.

William E. Pfau and William E. Pfau, Jr., Youngstown, for Nationwide Mut. Ins. Co., defendant-appellant.

David C. Haynes, Youngstown, for United States Fidelity & Guaranty Co., defendant-appellant.

Harrington, Huxley & Smith, Youngstown, for plaintiff-appellee.

Joseph W. Moore, Youngstown, for defendant-appellee.

PHILLIPS, Judge.

Plaintiff Hall, his employee Elmer L. Burley, United States Fidelity and Guaranty Company, insurer of plaintiff's Studebaker automobile, and Nationwide Mutual Insurance Company, insurer of plaintiff's Willys Jeep, will be referred to herein as Hall, Burley, United States Fidelity and Guaranty and Nationwide respectively.

While trying to start the jeep by towing with the Studebaker Burley was squeezed between the two vehicles while waiting to attach a tow line to the Studebaker and was injured allegedly as the result of Hall's negligence in permitting the Studebaker, which Hall was driving, to slip backward.

Subsequently Burley commenced an action in the court of common pleas against Hall to recover damages for personal injuries.

The policies of each of the insuring defendants contained the following insuring agreement provision:----

'To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, caused by the accident and arising out of the ownership, maintenance or use of the automobile.'

Each of the insuring defendants refused to assume Hall's defense in the action filed by Burley in the court of common pleas.

Hall then commenced an action in the court of common pleas against United States Fidelity and Guaranty, Nationwide and Burley in which he sought a declaratory judgment to determine whether the exclusion provisions, to which reference is made hereinafter, apply to the facts involved in the case commenced in the court of common pleas against Hall by Burley to recover damages for his injuries, and whether there is an obligation on the insuring defendants to defend the case filed by Burley and pay any damages on Hall's behalf. This is the action we now consider.

An exclusion provision in each policy under consideration reads as follows:

'This policy does not apply * * * to bodily injury * * * of any employee of the insured while engaged in the employment, other than domestic, of the insured or in domestic employment if benefits therefor are either payable or required to be provided under any workmen's compensation law.'

Workmen's compensation not being in the case the insuring defendants disclaim liability to Hall on the ground that Burley was Hall's employee other than a domestic and therefore was not covered by their policies of insurance.

Nationwide further disclaimed liability on the ground that Burley's injuries did not arise out of the 'ownership, maintenance or use of the jeep', as provided in the quoted insuring agreement provision.

The trial judge found without the intervention of a jury that Burley was an employee of Hall engaged in domestic employment; that the exclusion provisions of the insuring defendants' policies of insurance do not apply; and that the defendant insurers were bound to Hall by their general obligation to pay damages on his behalf, and entered judgment accordingly.

Insuring defendants separately appealed on questions of law from the judgment of the trial court in the declaratory judgment action.

Burley's amended petition filed in case number 148231 in the court of common pleas in his action against Hall to recover damages for personal injuries was by stipulation of the parties attached to the petition in the declaratory judgment action for consideration of the court in the case we review the same as though the amended petition had been filed prior to the taking of testimony.

In a word Burley's amended petition alleges his employment by Hall, his duties, his inability to start the jeep the use of which was necessary to discharge some of his duties, Hall's and Burley's attempt to start the jeep by towing the jeep with the Studebaker, Hall's alleged negligence in backing the Studebaker toward the jeep into Burley injuring him; and charges Hall with failing to keep a lookout behind the Studebaker and to observe Burley, backing the Studebaker at an unreasonable and improper speed, failing to maintain control of the Studebaker, and to observe Burley in a position of imminent danger in time to have decreased the speed of the Studebaker, stopped or 'turned it aside', and avoided striking Burley, and finally in failing to 'exercise ordinary care or caution for the safety of the person of the plaintiff who was lawfully upon his property'.

Hall, a practicing physician, lived with his family on a farm on which the home, barn and other buildings were situated. Burley was employed by Hall for $75 per month with room and board furnished in the family residence.

Further the evidence disclosed that Burley worked in the residence, the barn, the garden and on the farm. Without 'allocating his time and effort between work in the house and farm work, the evidence would indicate that the majority of his work...