Neal v. Celina Mut. Ins. Co.
| Decision Date | 07 March 1975 |
| Citation | 522 S.W.2d 179 |
| Parties | Helen M. NEAL, Administratrix of the Estate of Rickie Carl Black, Deceased, Appellant, v. CELINA MUTUAL INSURANCE COMPANY, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Edward T. Ewen, Jr., William P. Hurley, Jr., Louisville, for appellant.
William A. Miller, Louisville, for appellee.
CULLEN, Commissioner.
A small pistol accidentally fell from Robert McCue's pocket, hit the floor and discharged a bullet, which hit Rickie Carl Black, causing his death. Black's administrator sued McCue for damages for wrongful death, and recovered a judgment for approximately $32,000. The judgment not being satisfied, the administrator brought the instant action against Celina Mutual Insurance Company, asserting liability of that company to pay the judgment under a homeowner's liability policy it had issued to McCue. Among other defenses, Celina relied on a 'business pursuits' clause in its policy, which stated that the liability provisions of the policy did not apply.
'* * * to any business pursuits of an Insured, except * * * activities therein which are ordinarily incident to nonbusiness pursuits.'
The circuit court, apparently being persuaded of the validity of that defense, entered summary judgment dismissing the complaint. Black's administrator has appealed. We are affirming the judgment because it is our opinion that the accident did occur in the course of McCue's business pursuits.
McCue operated a gasoline service station. Black was one of his employes, customarily working the evening shift, which ended at 10 p .m. On Saturday, November 2, 1968, after the close of business at 10 p.m., Black and two other employes went into the station office for the purpose of receiving their wages for the week and settling up for gasoline and other things the employes had purchased during the week from the station, on credit, for their personal use. McCue and his bookkeeper were there. The procedure was that a check had been drawn to each employe for the amount of his wages; he would endorse the check and give it back to McCue, who would then deduct from the amount of the check the sum owed by the employe and pay him the difference in eash. On the occasion in question one of the employes received his money and left. Black was given his check; he endorsed it and handed it back to McCue, who proceeded with the assistance of the bookkeeper to determine how much cash Black was due after deducting what he owed for gasoline, etc. In the process of giving Black the cash, some change fell on the floor and McCue stooped over to pick it up. It was then that the pistol fell from his shirt pocket and discharged the shot that...
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