Milbank Mut. Ins. Co. v. Biss

• Decision Date: 30 August 1968
• Docket Number: Nos. 40584,40603 and 40640,s. 40584
• Citation: 281 Minn. 260,161 N.W.2d 622
• Parties: MILBANK MUTUAL INSURANCE COMPANY, Appellant, v. Walter BISS, Wayne Biss, Wesley Lilleboe and F. V. Lilleboe, Respondents, Austin-St. Paul Mutual Insurance Companies, Appellant.
• Court: Minnesota Supreme Court

Page 622

161 N.W.2d 622

281 Minn. 260

MILBANK MUTUAL INSURANCE COMPANY, Appellant, v. Walter BISS, Wayne Biss, Wesley Lilleboe and F. V. Lilleboe Respondents Austin-St. Paul Mutual Insurance Companies, Appellant.

Nos. 40584, 40603 and 40640.

Supreme Court of Minnesota.

Aug. 30, 1968.

Rehearing Denied Sept. 24, 1968.

Syllabus by the Court

A 13-year-old boy who has been hired to haul grain by tractor from a field to a granary is a 'farm employee' who has suffered a personal injury 'arising out of and in the course of employment' when he falls from a truck on which he is riding from the farmyard to the field at the direction of the owner's son. Consequently, the accident is one which is excluded by the provisions of the owner's automobile and public liability policies if they do not furnish coverage for injuries 'arising out of and in the course of' such employment.

Rufer, Blatti, Hefte & Pemberton, Fergus Falls, for Milbank.

Garrity, Cahill, Gunhus, Streed & Grinnell, Moorhead, for Austin.

Winter, Lundquist & Sherwood and Donald B. Pederson, Wheaton, for Biss.

I. L. Swanson, Elbow Lake, for Lilleboe.

OPINION

OTIS, Justice.

This is a declaratory judgment action between two liability carriers to determine whether either or both are obliged to defend a policyholder against whom an action has been brought for personal injuries resulting from an automobile accident which occurred on the insured's farm premises. The Milbank Mutual Insurance Company policy insures against automobile liability but excludes employees of the insured. The Austin-St. Paul Mutual Insurance Companies' policy covers public liability but excludes farm employees. The only issue is whether the trial court correctly held that the injured party was not an employee at the time of the accident and was therefore not excluded from coverage under either policy.

The essential facts are not in dispute. On August 11, 1961, Wesley Lilleboe, who was then 13 years of age, was picked up at his home by the insured, Walter Biss, and his two sons, Wayne and Larry Biss, and was driven to a farm owned by Biss, to assist in harvesting grain. When they reached the farm, there was a delay in starting work because the combine was not functioning properly. While they were waiting for the mechanic to make repairs, the two Biss boys were sent to the farmyard, a distance of about 50 rods from the field, to prepare the granary bin for receiving the oats which were being harvested. Lilleboe accompanied them but did not take part in this activity. When the Biss boys had completed their preparations, they got into a GMC truck to drive back to the field. The older son, Wayne, testified:

'Q. And then, I take it, you would have said to your other brother and to the Lilleboe boy some words which would result in their getting either on or in the truck so as to go out to the combine?

'A. Correct.

'Q. And it was then at your direction that the Lilleboe boy got on the truck and was on the truck at the time of this particular accident?

'A. Correct.'

Lilleboe was standing on the running board of the truck as it headed back toward the combine when he fell off and was injured. Some 4 years later he brought an action against Biss to recover damages. Biss claimed coverage with both Milbank and Austin-St. Paul. This declaratory judgment action has been brought to determine whether either or both are obliged to defend Biss.

The relevant provisions of the Milbank policy are as follows:

'* * * This policy does not apply under Part 1:

'(e) to bodily injury to any employee of the insured arising out of and in the course of (1) domestic employment by the insured, if benefits therefor are in whole or part either payable or required to be provided under any workmen's compensation law or (2) other employment by the insured * * *.'

The Austin-St. Paul exclusion provides as follows:

'This policy does not apply:

'(d) under coverages A and B, to bodily injury to or sickness, disease or death of

'(1) any farm employee arising out of and in the course of his employment by the insured unless farm employees are specifically declared in this policy * * *.'

The trial court specifically found as follows:

'That Wesley Lilleboe was not an employee or a farm employee of Walter Biss when the accident herein material happened; that the injuries sustained by the said Wesley Lilleboe did not arise out of and in the course of his employment.'

Young Lilleboe had previously worked for Biss in 1960 and again in 1961. He was employed 15 or 20 days during the season, picking rocks from the fields and operating a tractor to haul grain in a wagon. His pay had been 50cents an hour. Biss testified that Lilleboe had been paid only for the time during which he operated the tractor and the time it took to return home at night. Lilleboe also testified that his compensation started when he began hauling grain. Because Lilleboe was injured before he got to the field, it is the contention of Biss that he neither earned nor received any pay on the day of the accident. Hence, he argues that the injury did not arise out of, and in the course of, employment and the exclusions do not apply. As far as the ride from the farmyard to the field is concerned, Biss asserts that it was merely an accommodation or personal favor unrelated to employment.

The narrow questions are (1) whether our decision in State Farm Mutual Auto. Ins. Co. v. Skluzacek, 208 Minn. 443, 294 N.W. 413, governs; and (2) whether in identical fact situations we are obliged to come to diametrically opposite conclusions in construing insurance exclusions and in interpreting the Workmen's Compensation Act.

The Skluzacek case held that a 16-year-old boy who had been given a ride by a farmer and was struck by his automobile about 100 feet from where the boy was hired to weed an onion patch, was not an employee at the time of the accident. Hence it was held that the following exclusion did not apply (208 Minn. 445, 294 N.W. 414):

'The company shall not be liable * * * for bodily injury to any employe of the assured while engaged in the business of the assured.'

The decision was predicated on the fact that the employee's hours of service had not commenced and that the use of the truck was not intended for taking the injured boy to the onion field but for the farmer's own purposes. The distance from the farmhouse to the field was short and transportation by truck was not always available. The court concluded by noting that under the evidence findings either way could have been sustained. We concur in the contention of Biss that the Skluzacek case is difficult to distinguish. It is of some significance, however, that in that case the farmer stated he...