St. Aubyn v. Thogmartin, 45809

• Decision Date: 07 November 1970
• Docket Number: No. 45809,45809
• Citation: 206 Kan. 62,476 P.2d 248
• Parties: Raymond ST. AUBYN, by and Through His Nother and Natural Guardian and Next Friend, La Laughn St. Aubyn Pennington, Plaintiff, v. Susan Brownfield THOGMARTIN, Edward Myer and Allstate Insurance Company, Defendants. Frank ENGLER, Appellee (Defendant and Third Party Plaintiff), v. PACIFIC INSURANCE COMPANY OF NEW YORK, Appellant (Third Party Defendant).
• Court: Kansas Supreme Court

Page 248

476 P.2d 248

206 Kan. 62

Raymond ST. AUBYN, by and Through His Nother and Natural

Guardian and Next Friend, La Laughn St. Aubyn

Pennington, Plaintiff, v. Susan Brownfield THOGMARTIN, Edward Myer and Allstate

Insurance Company, Defendants.

Frank ENGLER, Appellee (Defendant and Third Party Plaintiff), v. PACIFIC INSURANCE COMPANY OF NEW YORK, Appellant (Third

Party Defendant).

No. 45809.

Supreme Court of Kansas.

Nov. 7, 1970.

Syllabus by the Court

1. Whether a person was an employee of an insured within the meaning of a policy exclusionary clause is a question to be decided from consideration of all the facts and circumstances.

2. A person is not an employee by virtue of the fact that he does work or performs services for another when he does so merely as a favor for such other person.

John Jurcyk, of McAnany, Van Cleave and Phillips, Kansas City, argued the cause, and Willard L. Phillips, Kansas City, of the same firm was with him on the brief for appellant.

Charles O. Thomas, of Weeks, Thomas, Lysaught, Bingham & Johnston, Kansas

City, chartered, argued the cause, and Leonard O. Thomas, Kansas City, of the same firm was with him on the brief for appellee.

HARMAN, Commissioner:

This appeal involves the duty of a liability insurance carrier to defend, and its liability to pay any judgment rendered against, a particular defendant in an automobile negligence action. The single issue is the applicability of a 'fellow employee' exclusionary clause in the carrier's policy.

From an adverse judgment following trial to the court on this limited aspect, the insurance carrier, Pacific Insurance Company of New York, has appealed.

The background of the action will be briefly stated.

Raymond St. Aubyn, a sixteen year old boy, was on October 25, 1966, a regular employee of Edward Myer. Myer was a contract carrier for the Kansas City Star, using a motor vehicle in the daily delivery of newspapers in Kansas City, Kansas. Myer owned the vehicle and normally drove it along the route while two teen-aged boys threw papers from it. An automobile liability insurance policy issued by Pacific covered the Myer vehicle.

On the day in question Myer had gone on a hunting trip and Frank Engler was driving the vehicle in his stead and at his request in the morning delivery of papers. (Engler's status is the crux of this action, about which more anon). St. Aubyn was in the delivery truck for the purpose of throwing papers. The truck collided with an automobile driven by Susan Brownfield Thogmartin, injuring St. Aubyn as a result.

St. Subyn commenced this action by filing his petition for damages against Thogmartin, Myer and Engler. Myer and Engler filed separate answers. Thereafter, Engler, though his own automobile liability insurer, commenced a third party proceeding against Pacific. In this third party suit Engler alleged that Pacific under its policy covering the Myer vehicle was obligated to defend him (Engler) and to pay, within policy limits, any judgment obtained against him by St. Aubyn, and Engler sought declaratory judgment for this relief.

In due course Pacific filed an answer asserting its coverage did not extend to appellee Engler by reason of an exclusionary clause in the policy which provided that it was not applicable:

'(f) to bodily injury to any fellow employee of the insured injured in the course of his employment if such injury arises cour of the use of an automobile in the business of his employer * * *.'

The trial court heard the third party suit in advance of trial of the negligence action upon its merits. It made findings of fact and conclusions of law favorable to Engler's position, and, as indicated, rendered judgment as requested against Pacific, which has appealed. Engler is the only other party to this appeal, although his own insurance carrier is interested in the outcome.

To clarify and pinpoint the precise issue upon appeal we may state:

Appellant Pacific concedes appellee Engler is, by definition in its policy, an additional insured therein inasmuch as he was operating the vehicle with Myer's permission. The parties agree St. Aubyn was an employee of Myer and both concede the dispositive factor in this proceeding is whether appellee was an employee of Myer at the time in question. As the issue is submitted to us, if appellee was not an employee of Myer, appellee has insurance protection an an alleged tortfeasor by reason of being an additional although unnamed insured; it appellee was an employee of Myer, appellee has no coverage where another employee of Myer is seeking judgment. (The policy also contains an 'employee' exclusionary clause which is of no present concern.)

The evidence at trial upon appellee's status in its most favorable aspect toward him as the prevailing party revealed the following:

Appellee formerly was a contract carrier for the Kansas City Star but had retired several years prior to October 25, 1966. He and Myer had been friends, and he had, prior to the occasion in question, driven Myer's route for him an average of two or three times a year. When he had done this there had never been any agreement for compensation. Sometimes Myer would give appellee varying amounts for taking the route but always what he (Myer) wanted to; upon occasion Myer gave appellee no payment at all; sometimes appellee would give back all or some of the money given him by Myer. When Myer asked appellee to take his route for him on October 25, 1966, so that he could go hunting, there was no talk or suggestion of pay. Subsequently Myer did give appellee $5.00 for driving the route on that day. While appellee was driving the route the two boys who were throwing papers told appellee where to drive as he was not acquainted with the route. In the summer of 1968 Myer took ten days off from his work and he had another driver take his place on the route; he paid that relief driver $100.

When asked how he would characterize his friendship with appellee Myer testified:

'I would say very close; I'd help him whenever I could and he helps me whenever he can, and it's a mutual friendship, no business friendship.'

Appellee gave the following testimony:

'Q. All right. Now, if there wasn't any understanding as to salary, why would you do this for Mr. Myer?

'A. As a favor.

'Q. As a favor. And had you done this for him in the past?

'A. I have, yes.

'Q. Approximately how often do you do this favor for him?

'A. Oh, maybe twice a year, somewhere in that neighborhood, if I am free.

'Q. And when you have driven the truck for him on these prior occasions, was there ever any talk or discussion about any money to be paid to you for this?

'A. None whatsoever.

'Q. Now, you have been present during Mr. Myer's testimony, and he stated that he gave you a certain amount of money after you had completed--

'A. I have refused it from him sometimes and haven't even taken it. I didn't do it for what I would get out of it, I done it for a favor to Mr. Myer.

'Q. In other words, sometimes he gave you a little money and sometimes he didn't give you any?

'A. That's right.

'Q. All right, and you did this--

'A. Sometimes he insisted, in other words, that I take something for it and I would say, 'O. K., if that's the way you feel about it.'

* * *

* * *

'A. Well, I know that as far as him requesting me, he never requested me, ...