Morfoot v. Stake

• Decision Date: 08 May 1963
• Docket Number: No. 37487,37487
• Citation: 190 N.E.2d 573,174 Ohio St. 506
• Parties: , 23 O.O.2d 144 MORFOOT, Adm'x, Appellant, v. STAKE, State Automobile Mutual Ins. Co., Appellee.
• Court: Ohio Supreme Court

Page 506

174 Ohio St. 506

190 N.E.2d 573, 23 O.O.2d 144

MORFOOT, Adm'x, Appellant, v. STAKE, State Automobile Mutual Ins. Co., Appellee.

No. 37487.

Supreme Court of Ohio.

May 8, 1963.

Syllabus by the Court

1. Although, as a rule, a policy of insurance that is reasonably open to different interpretations will be construed most favorably for the insured, that rule will not be applied so as to provide an unreasonable interpretation of the words of the policy.

2. Where one is employed as a servant to do work for another as the master and the arrangement between them requires the master to provide transportation for the servant in the master's automobile to and from the servant's place of employment, the servant will be within the course of his employment for the master on the return trip even though the master was not authorized to exercise any other control over the servant and the servant was required to do nothing for the master on that return trip.

3. In the absence of some statutory requirement, the owner of an automobile is not obligated, when the contracts for liability insurance, to provide coverage for those of his employees who may drive the automobile with his permission or in the course of their employment for him.

This cause originated as an action to recover for the death of plaintiff's decedent claimed to have been caused by the negligence of defendant Stake in the operation of an automobile in which plaintiff's decedent was riding.

A default judgment for $13,100 was rendered against defendant Stake. Thereafter, plaintiff filed a supplemental petition pursuant to Section 3929.06, Revised Code to require that defendant insurer, as the insurer of the automobile driven by defendant Stake, pay, to the extent of its $10,000 policy limits, the judgment rendered against defendant Stake.

Admittedly, defendant Stake was covered as an additional insured under a policy issued to his employer Wood as the owner of the automobile involved unless such coverage was excluded by the provisions of that policy reading:

'The insurance with respect to any person * * * other than the named insured does not apply:

'* * *

'(b) To any employee with respect to injury to * * * or death of another employee of the same employer injured in the course of such employment in an accident arising out of * * * use of the automobile in the business of such employer.'

It is conceded that plaintiff's decedent and defendant Stake were each employees of the named insured Wood and that plaintiff's decedent's death arose out of use of the insured automobile in the business of the named insured Wood. Whether the policy would insure defendant Stake would therefore depend upon whether plaintiff's decedent was 'injured in the course of * * * [his] employment' by the named insured Wood, within the meaning of those words as used in the insurance policy.

The Common Pleas Court rendered a judgment of $10,000 for plaintiff.

The Court of Appeals reversed the judgment of the Common Pleas Court for the reason that plaintiff's decedent was so 'injured in the course of * * * employment' by the named insured Wood. The cause is now before this court on appeal from the judgment of the Court of Appeals, pursuant to allowance of plaintiff's motion to certify the record.

Ross, Sauter & Lett, Mansfield, for appellant.

Lutz & Oxley, Ashland, for appellee.

TAFT, Chief Justice.

A policy of insurance which is reasonably open to different interpretations will be construed most favorably for the insured. Butche v. Ohio Casualty Ins. Co. (1962), 174 Ohio St. 144, 187 N.E.2d 20; Home Indemnity Co. v. Village of Plymouth (1945), 146 Ohio St. 96, 101, 64 N.E.2d 248. However, that rule will not be applied so as to provide an unreasonable interpretation of the words of the policy.

The ultimate question to be determined in the instant case is whether, within the meaning of the foregoing-quoted policy provisions and on the facts of this case, plaintiff's decedent was, as a matter of law, 'injured in the course of * * * [his] employment' by the named insured Wood. If he was, the judgment of the Court of Appeals must be affirmed. If he was not, that judgment must be reversed.

From the allegations of the petition filed by plaintiff against defendant Stake and from the evidence, it appears without dispute that plaintiff's decedent and defendant Stake and others were 'employed by' the named insured Wood to go from Mansfield where they lived to Cuyahoga County to 'gather' night crawlers for fish 'bait to be used in and about the business of * * * Wood,' that plaintiff's decedent was to receive 'a stipulated payment by * * * Wood for such services' which was $3 a pan for the night crawlers gathered, that transportation was to be furnished plaintiff's decedent by Wood from and to Mansfield, that plaintiff's decedent and others left Mansfield for that purpose in Wood's automobile driven by defendant Stake who was paid extra by Wood to drive the car, and that they were returning to Mansfield in that automobile driven by that defendant when plaintiff's decedent was injured. (Quotations are from plaintiff's original petition against defendant Stake.)

The only evidence in the record tending to indicate whether the named insured Wood retained control of, or the right to control, the mode or manner of doing the work contracted for (see Councell v. Douglas [1955], 163 Ohio St. 292, 126 N.E.2d 597, and Behner v. Industrial Commission [1951], 154 Ohio St. 433, 96...