Schnurman v. Western Cas. & Sur. Co. of Fort Scott, Kan.

• Decision Date: 06 March 1944
• Docket Number: 38766
• Parties: Dave Schnurman v. Western Casualty & Surety Company of Fort Scott, Kansas, a Corporation, Appellant
• Court: Missouri Supreme Court

179 S.W.2d 31

352 Mo. 650

Dave Schnurman v. Western Casualty & Surety Company of Fort Scott, Kansas, a Corporation, Appellant

No. 38766

Supreme Court of Missouri

March 6, 1944

Rehearing Denied April 3, 1944.

Appeal from Circuit Court of City of St. Louis; Hon. William S Connor, Judge.

Affirmed.

Robert A. Roessel for appellant.

(1) Plaintiff at the time of the accident in question was an employee of Rubenstein & Figlure, Inc., within the meaning of the policy in question, and was engaged in the business of the company. He was acting in the course of such employment at the time of the accident. Sonnenberg v. Berg's Market, 227 Mo.App. 391, 55 S.W.2d 494; March v Bernardin, 229 Mo.App. 246, 76 S.W.2d 706; Carrigan v. Western Radio Co., 226 Mo.App. 468, 44 S.W.2d 245; Sylcox v. Natl. Lead Co., 225 Mo.App. 543, 38 S.W.2d 497; Howes v. Stark Bros. Nurseries & Orchards Co., 223 Mo.App. 793, 22 S.W.2d 839; Johnson v. Aetna Cas. & Surety Co., 104 F.2d 22. (2) Plaintiff's employment did not end until he returned to Salem, Missouri. Sylcox v. Natl. Lead Co., 225 Mo.App. 543, 38 S.W.2d 497; Howes v. Stark Bros. Nurseries & Orchards Co., 223 Mo.App. 793, 22 S.W.2d 839; Johnson v. Aetna Cas. & Surety Co., 104 F.2d 22. (3) The language of the exclusion clause of the policy in question is plain and unambiguous and should have been construed by the court as written and the words "any employee" given their plain meaning. Schnurman and Figlure were employees within the meaning of the policy. State Farm Mut. Automobile Ins. Co. v. A. F. Brooks, 136 F.2d 807; State ex rel. Natl. Life Ins. Co. v. Allen, 256 S.W. 737; State ex rel. Mutual Life Ins. Co. of New York v Shain, 126 S.W.2d 181; State ex rel. Mutual Benefit, Health & Accident Assn. v. Trimble, 68 S.W.2d 685; Wendorff v. Mo. State Life Ins. Co., 1 S.W.2d 99; Turner v. Fidelity & Casualty Co. of New York, 202 S.W. 1078; De Walt v. State Farm Mut. Auto. Ins. Co., 111 F.2d 699. (4) The phrase, "any employee," is a very broad and comprehensive term and includes an employee of any kind, character and nature, whether incidental, casual, regular or otherwise. State Farm Mut. Automobile Ins. Co. v. Brooks, 136 F.2d 807; Webster's New International Dictionary, p. 101; 3 C.J., pp. 1398, 1399, 1400; State ex rel. Union Elec. L. & P. Co. v. Public Serv. Comm., 84 S.W.2d 904; St. Avit v. Kettle River Co., 216 F. 872; Vermont v. United States, 174 F. 792; Stokes v. United States, 39 F.2d 440; Nigro v. United States, 48 S.Ct. 388, 72 L.Ed. 600, 376 U.S. 332; Duncan v. Thompson, 315 U.S. 1, 62 S.Ct. 422; Erie R. Co. v. Hilt, 247 U.S. 97, 38 S.Ct. 435; Webster's Collegiate Dictionary; 20 C.J. 1241; 35 Am. Jur. 445; 30 C.J., pp. 226, 227, 230; Simmons v. Kansas City Jockey Club, 66 S.W.2d 119; Bernat v. Star-Chronicle Publishing Co., 84 S.W.2d 429; Maltz v. Jackoway-Katz Cap Co., 82 S.W.2d 909; Skidmore v. Haggard, 110 S.W.2d 726; Barnes v. Real Silk Hosiery Mills, 108 S.W.2d 58; Maryland Casualty Co. v. Stockstill, 111 F.2d 450; Aetna Casualty & Surety Co. v. Howell, 108 F.2d 148; Church v. Consolidated Indemnity & Ins. Co., 174 A. 488; Shawcroft v. Standard Acc. Ins. Co., 30 P.2d 987; Brand v. Employers' Liability Corp., 280 N.W. 404; Bernard v. Wis. Auto. Ins. Co., 24 N.W. 200; Continental Casualty Co. v. Pierce, 150 So. 279; Lunt v. Aetna Life Ins. Co., 159 N.E. 461. (5) Plaintiff is estopped to deny that he was an employee of Rubenstein and Figlure, Inc., within the meaning of the policy at the time of the accident. 21 C.J., pp. 1060-1061, 1113, 1115; 2 Herman, Estoppel and Res Adjudicata, secs. 937-38; Harris v. American Bldg. Assn., 122 Ala. 545; Prudential Ins. Co. v. German Mutual Ins. Co., 105 S.W.2d 1001; State ex rel. v. Haid, 41 S.W.2d 806; Ornellas v. Moynihan, 16 S.W.2d 1007; Fairgate Realty Co. v. Drozda, 131 S.W. 398.

C. O. Inman, Harry M. Soffer and Joseph Nessenfeld for respondent.

(1) The court properly concluded that plaintiff was not an employee of the insured within the meaning of the policy so as to exclude coverage of the liability of Figlure for plaintiff's damages. There is a substantial difference between the terms "employee of" and "employed by." State ex rel. Maryland Casualty Co. v Hughes, 164 S.W.2d 274. (2) The word "employee," as used in the policy in question, is subject to construction. As commonly used, it signifies continuous service, exclusive of casual or occasional employment, and means a person having permanent employment, rendering regular and continuous services, not limited to a particular transaction. 30 C.J.S., p. 226; Daub v. Maryland Casualty Co., 148 S.W.2d 58; State ex rel. Maryland Cas. Co. v. Hughes, 164 S.W.2d 274; Braley Motor Co. v. Northwest Casualty Co., 184 Wash. 47, 49 P.2d 911; Eisen v. John Hancock Ins. Co., 91 S.W.2d 81; Louisville, etc., R. Co. v. Wilson, 138 U.S. 501, 11 S.Ct. 405; City of Pontiac v. Ducharme, 270 N.W. 754. (3) The exemption clause in the paragraph defining "insured" and the exclusion clause of the policy are restrictive and are invoked as an affirmative defense by the garnishee. They are to be strictly construed against the insurer, and the burden of proof of establishing the defense rests upon the garnishee. State ex rel. Security Mut. Ins. Co. v. Allen, 305 Mo. 607, 267 S.W. 379; Wendorff v. Mo. State Ins. Co., 1 S.W.2d 99; Fetter v. Fidelity & Casualty Co., 174 Mo. 256, 73 S.W. 592; State ex rel. Mills Lbr. Co. v. Trimble, 327 Mo. 899, 39 S.W.2d 355; Mathews v. Modern Woodmen of America, 236 Mo. 342, 139 S.W. 151. (4) Garnishee did not sustain that burden and the evidence failed to show that the relation of master and servant existed, as it did not show any right of control over the manner in which plaintiff performed the alleged services. An independent contractor is not an employee. Simmons v. Kansas City Jockey Club, 66 S.W.2d 119; Bernat v. Star-Chronicle Pub. Co., 84 S.W.2d 429; Skidmore v. Haggard, 110 S.W.2d 726; Barnes v. Real Silk Hosiery Mills, 108 S.W.2d 58. (5) The court did not find as a fact that plaintiff was an employee, but found only that he was employed by Rubenstein & Figlure, Inc., to perform a specific task. State ex rel. Maryland Cas. Co. v. Hughes, 164 S.W.2d 274. (6) The court properly held that whatever employment plaintiff may have had ended at Tulsa, Oklahoma, when the merchandise was disposed of. One is not in the scope of his employment when riding in a conveyance furnished by the alleged employer merely as a courtesy on an isolated occasion, after the termination of the alleged employment, as is shown in this case. Green v. Travelers Ins. Co., 286 N.Y. 358, 36 N.E.2d 620. (7) Figlure was an additional insured under the policy with respect to plaintiff's claim because Figlure was vice-president and secretary of the named insured. Being a high officer of the corporation, Figlure is not an employee, as that term is ordinarily understood. 30 C.J.S., p. 227; Manfield & Firman Co. v. Manfield, 182 N.E. 539; Soars v. Soars-Lovelace, Inc., 142 S.W.2d 866; Webster's New International Dictionary (2d Ed.), definition of "employee"; Bowe v. S.W. Bowe Co., 221 N.Y. 28, 116 N.E. 364; Leigh Aitchison v. Industrial Comm., 188 Wis. 218, 205 N.W. 806; State ex rel. McConnell v. Peoples Bank & Trust Co., 296 S.W. 12. (8) The restrictive and exemption clauses are ambiguous, i.e., subject to construction. They must be construed according to the ordinary and common meaning attributed to the words, with a view to effectuate the insurance. Henderson v. Mass. Bonding & Ins. Co., 337 Mo. 1, 845 S.W.2d 922; Souders v. Commonwealth Casualty Co., 246 S.W. 613; Arms v. Faszholz, 32 S.W.2d 781; State ex rel. Mut. Ben. Health & Accident Assn. v. Shaw, 166 S.W.2d 484; State ex rel. Ocean Acc. & Guar. Corp. v. Hostetter, 341 Mo. 488, 108 S.W.2d 17; Soukop v. Employers' Liability Assur. Corp., 341 Mo. 614, 108 S.W.2d 86. (9) Even if plaintiff had been an employee of the named insured his claim would be covered by the policy because he asserted no claim against the corporation, but recovered against the additional insured, of whom he was not an employee. Kaifer v. Georgia Casualty Co., 67 F.2d 309. (10) There was no evidence that the accident occurred during a time or while Schnurman was actively participating or was then occupied in furthering the business of Rubenstein & Figlure, Inc. The exclusion clause relied on by appellant could at best apply only if the injury is sustained while the injured employee is engaged in the business of the insured. Long v. St. Joseph Life Ins. Co., 248 S.W. 922; Elliott v. Behner, 150 Kan. 876, 96 P.2d 852; Ayres v. Harleysville Mut. Casualty Co., 2 S.E.2d 303; Benham v. Am. Central Life Ins. 140 Ark. 612, 217 S.W. 62; Head v. New York Life Ins. Co., 43 Fed (2d) 517. (11) Estoppel is not available to the garnishee as a defense, because it is an affirmative defense which must be pleaded unless conclusively shown by plaintiff's case. It was neither pleaded nor shown by plaintiff's case here. Thimmig v. General Talking Pictures Co., 85 S.W.2d 208; Armbruster v. Armbruster, 31 S.W.2d 28; Mo. Cattle Loan Co. v. Great Southern Life Ins. Co., 52 S.W.2d 1; Longo v. John Hancock Ins. Co., 142 S.W.2d 871; Scanlon v. Kansas City, 28 S.W.2d 84; Whalen v. Buchanan County, 111 S.W.2d 177. (12) Garnishee was not justified in relying upon the written statement because it was repeatedly advised that plaintiff was not in fact an employee, and this information was received by the garnishee prior to the entry of judgment in the damage suit. Rubenstein testified in his deposition taken in the garnishment proceedings that Schnurman was not an employee. Therefore, garnishee had ample time to plead estoppel if it cared to do so. Grafeman Dairy Co. v. Northwestern Bank, 290 Mo. 311, 235 S.W. 435; Rhodes v. Rhodes, 342 Mo....