Kaifer v. Georgia Casualty Co., 7087.

• Decision Date: 23 October 1933
• Docket Number: No. 7087.,7087.
• Citation: 67 F.2d 309
• Parties: KAIFER v. GEORGIA CASUALTY CO.
• Court: U.S. Court of Appeals — Ninth Circuit

67 F.2d 309 (1933)

KAIFER v. GEORGIA CASUALTY CO.

No. 7087.

Circuit Court of Appeals, Ninth Circuit.

October 23, 1933.

Lasher B. Gallagher, of Los Angeles, Cal., for appellant.

George P. Kinkle, of Los Angeles, Cal., for appellee.

Before WILBUR, SAWTELLE, and MACK, Circuit Judges.

MACK, Circuit Judge.

This appeal is from a judgment for defendant in an action at law on an indemnity insurance policy issued by defendant. Jury was waived and the cause submitted to the court. The only evidence was the stipulation of facts. No motion was made by either party for a declaration of law or its equivalent. The court made no special findings, but found generally for the defendant on its conclusion of law that the exclusion clause of the policy was applicable under the facts as stipulated and absolved the defendant from liability. Disregarding, in view of the result reached by us, defendant's exception to the striking out on plaintiff's motion of certain stipulated facts, the only question before us in the circumstances is whether or not the ultimate stipulated facts and the pleadings necessitated a conclusion and judgment contrary to that reached by the court. The pertinent provisions of the policy which named Columbia Pictures Corporation and/or officers as the assured are copied in the margin.¹

The pertinent stipulated facts are that appellant, who is in Columbia's employ as a camera man, while engaged in photographing for it in connection with a moving picture, was injured by Columbia's truck negligently driven by one Sparks in the course of his employment as such driver by Columbia in connection with the picture. Plaintiff recovered a judgment against Sparks in the California state court for $10,000 and costs for damages on account of the injuries thereby caused to him.

Clearly Sparks was an additional assured, as a person legally operating a truck, covered by the policy, with the permission of the named assured. The contested question is whether or not plaintiff was an employee of the assured engaged in any business or occupation of the assured within the third exclusion provision.

Literally construed the word "assured" in this provision would mean the named assured and the additional assured Sparks. Concededly plaintiff was not an employee of Columbia and Sparks jointly or of Sparks alone, but was in the sole employment of Columbia.

The first exclusion clause clearly indicates that defendant assumed no liability to indemnify either Columbia or any one else against loss arising out of an injury to any of its employees, which would be covered by a Workmen's Compensation Law. The second exclusion clause absolves it from liability from injury to such an employee engaged in operating an automobile covered by the policy whether a Workmen's Compensation Act was applicable or not. These two clauses, however, do not appear to throw any...