State Farm Mut. Automobile Ins. Co. v. Braxton

• Decision Date: 01 April 1948
• Docket Number: No. 5709.,5709.
• Citation: 167 F.2d 283
• Parties: STATE FARM MUT. AUTOMOBILE INS. CO. v. BRAXTON et al.
• Court: U.S. Court of Appeals — Fourth Circuit

167 F.2d 283 (1948)

STATE FARM MUT. AUTOMOBILE INS. CO. v. BRAXTON et al.

No. 5709.

Circuit Court of Appeals, Fourth Circuit.

April 1, 1948.

Ralph T. Catterall, of Richmond, Va. (Williams, Mullen & Hazelgrove and Guy B. Hazelgrove, all of Richmond, Va., on the brief), for appellant.

George E. Allen, Jr., and George E. Allen, both of Richmond, Va. (Allen & Allen, and M. J. Fulton, all of Richmond, Va., on the brief), for appellees.

Before PARKER, SOPER and DOBIE, Circuit Judges.

DOBIE, Circuit Judge.

Herman Braxton, in a state court, recovered judgment for damages for personal injuries against J. E. Flippo. Since Flippo held a public liability policy issued by the State Farm Mutual Automobile Insurance Company (hereinafter called the insurer), Braxton garnisheed the insurer in the state court and insurer thereupon removed the case to the United States District Court for the Eastern District of Virginia.

In the District Court Braxton filed a complaint, to which was attached a copy of the insurance policy, and the insurer filed an answer containing five defenses. The parties agreed that Braxton's testimony in the state court was true. The insurer, alleging that there was then no dispute as to any material fact, moved for a summary judgment in its favor, while Braxton moved to strike insurer's first four defenses.

The District Court denied insurer's motion for a summary judgment in its favor and granted Braxton's motion to strike the first four defenses of insurer. The case was then set for hearing before a jury on insurer's fifth defense which involved the question of whether the insurer had waived the written notice of the accident which the policy required Flippo to give "as soon as practicable." A verdict for Braxton was found by the jury, judgment thereon against the insurer was duly entered and the insurer has appealed to us.

Insurer has abandoned defenses numbered one and two. Its defenses numbered three and four relate to the exclusion clause of the policy. Since we think that insurer was entitled to a summary judgment under this clause, it is unnecessary for us to consider or to discuss the fifth defense which deals with the lack of notice and the question of the waiver of notice.

The exclusion clause of the policy, to which we now address ourselves, reads: "The policy does not apply: (d) Under coverage A, to bodily injury to or death of any employee of the insured while engaged in the employment, other than domestic, of the insured, or while engaged in the operation, maintenance or repair of the automobile;" Flippo employed Braxton to help in sawing and delivering wood. Braxton was to receive wages at the rate of $3 per day, and his working hours were to be from 8 a. m. until 5 p. m. The accident in question occurred on November 8, 1943, the first day of Braxton's employment by Flippo.

That day, shortly before 5 p. m., Flippo and Braxton delivered the last load of wood on the Petersburg Pike, near Stop 3, a short distance from the intersection of the Petersburg Pike and Hull Street, in the City of Richmond, Virginia. Flippo's home was on Midlothian Pike, about three-fourths of a mile west of the City limits, while Braxton's home was to the northeast, on Church Hill, in the City of Richmond, some distance from the intersection just mentioned. Accordingly, upon reaching the intersection, it was necessary for Flippo to turn left and proceed in a westerly direction to get to his home, while Braxton had to go in a northeasterly direction in order to reach his home.

At or about 5 p. m., on the day in question, while Braxton and Flippo were on the empty truck driving toward the Hull Street intersection, Flippo told Braxton that it was quitting time and that he could go. Flippo suggested that Braxton might catch a streetcar to Braxton's home. Braxton replied that he had no money and requested that Flippo advance 7 cents, the amount of the street-car fare. Flippo would not assent to this request of Braxton but then agreed, as Braxton suggested, to transport Braxton to a point on the Midlothian Pike, near Flippo's home, where, according to Braxton, he could pick up a ride home from a friend of his, one Linwood Epes who worked nearby. Once again, further on the ride, Flippo suggested that Braxton take the streetcar, without an offer by Flippo to advance the 7 cents for carfare but this suggestion was not taken by Braxton. The journey thereupon continued past the Hull Street intersection, with both Flippo and Braxton on the truck, towards the spot where Braxton was to leave the truck and seek a ride home from his friend, Epes.

While Flippo was driving the truck, some motor trouble developed. Flippo thereupon instructed Braxton to drive the truck. Braxton obeyed, and Flippo stood on the running-board of the truck, pouring gasoline from a bottle into the carburetor. While Braxton was driving, the truck caught fire and Flippo ordered Braxton: "Pull over to the side and stop." Again Braxton obeyed and Flippo then told Braxton "Give me a crocus sack." Braxton gave Flippo the sack upon which Braxton was sitting and then, upon further instruction from Flippo, Braxton got out of the truck. Flippo tried to extinguish the fire with the sack. The sack caught fire and Flippo threw the burning sack, saturated with gasoline, against Braxton, who was standing on the ground nearby, and Braxton sustained severe burns and injuries, which necessitated the amputation of a leg.

It is well settled that the primary purpose of an exclusion clause in a public liability policy, such as is now before us, is to draw a sharp line between employees, who are excluded, and members of the general public. As Judge Parker, speaking for our Court in Lumber Mutual Casualty Ins. Co. v. Stukes, 4 Cir., 164 F.2d 571, 573, said: "The purpose of the exclusion clause is to limit coverage to liability for injury to members of the general public and to exclude liability to employees of the insured."

Likewise, this...