INSURANCE CO. OF NO. AMER. v. GENERAL AVIATION SUP. CO.
| Decision Date | 21 December 1960 |
| Docket Number | No. 16499.,16499. |
| Parties | INSURANCE COMPANY OF NORTH AMERICA, Appellant, v. GENERAL AVIATION SUPPLY CO., a Corporation, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Ernest E. Baker, St. Louis, Mo., for appellant, and Louis A. Robertson, St. Louis, Mo., with him on the brief.
Morris E. Stokes, St. Louis, Mo., for appellee, and Charles F. Hamilton, St. Louis, Mo., Moser, Marsalek, Carpenter, Cleary, Jaeckel & Hamilton, St. Louis, Mo., with him on the brief.
Before SANBORN, WOODROUGH and MATTHES, Circuit Judges.
General Aviation Supply Company brought this suit for a declaratory judgment to adjudicate that it was an insured under the extended or omnibus clause of a policy of liability insurance issued by the defendant insurance company to Cincinnati Aircraft Company and Cincinnati Air Activities, Inc. as named insureds and to adjudicate that the insurance company was bound by the policy to defend and indemnify plaintiff in respect to an action by one Joseph Babis against the plaintiff and its employee Joseph Genne for damages in the sum of $90,000.00 for personal injuries sustained in the crash of an aeroplane belonging to the first named Cincinnati company in which Babis and Genne were riding with that company's consent. Babis alleged in his complaint against the plaintiff herein (filed in the State Court) that the aeroplane was negligently caused to fall while being operated by the plaintiff's employee within the scope of his employment.
The policy issued by defendant was in force at the time of the accident and by coverages A(1), B(1), and C(1) insured the named companies up to $40,000.00 in respect to bodily injury liability sustained by passengers in their planes and persons therein other than passengers and in respect to property damage liability. The policy also provided for what is referred to as extended or omnibus insurance as follows:
The plaintiff claimed that, as its employee was riding in the named insured's aeroplane with the named insured's consent, and the employee, according to the complaint of Babis, was negligent in operating the plane in the plaintiff's business within the scope of his employment, the plaintiff was included in and entitled to be treated as an insured under the policy. The insurance company defended on the ground, among others, that the policy excluded the plaintiff from that coverage of the policy because the plaintiff was an "aviation sales or service or repair organization" within the meaning of the policy which excluded such organizations and their employees from coverage.
On the trial of the case to the Court without a jury the Court recognized that the question whether the plaintiff was such an organization was "both a legal and a factual matter." It received evidence of what plaintiff did and did not do in the course of its business and in the absence of any prior judicial interpretation of the phrase it observed that "one does not sell or repair or service aviation" and it concluded that ...
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