Tri-State Casualty Ins. Co. v. Loper

• Decision Date: 25 May 1953
• Docket Number: No. 4524.,4524.
• Parties: TRI-STATE CASUALTY INS. CO. v. LOPER.
• Court: U.S. Court of Appeals — Tenth Circuit

204 F.2d 557 (1953)

TRI-STATE CASUALTY INS. CO. v. LOPER.

No. 4524.

United States Court of Appeals Tenth Circuit.

February 13, 1953.

Rehearing Denied May 25, 1953.

C. J. Watts and Looney, Watts, Ross, Looney & Smith, Oklahoma City, Okl., were on the brief for appellants.

James E. Grigsby, Oklahoma City, Okl., and Omer Luellen, Hinton, Okl., were on the brief for appellee.

Before BRATTON, HUXMAN, and MURRAH, Circuit Judges.

BRATTON, Circuit Judge.

The decisive question which the appeal in this case presents for determination is whether R. P. Loper, at the time he suffered personal injury, was engaged in the employment of G. E. Lanier, within the intent and meaning of a provision contained in a policy of public liability insurance excluding from the coverage bodily injury to an employee while engaged in the employment of the insured.

Lanier owned a certain truck and semitrailer which he operated in Kansas and elsewhere as a private carrier. To comply with the laws of Kansas, he filed or caused to be filed with the Public Service Commission of that state a policy of public liability insurance. The policy was issued by Tri-State Casualty Insurance Company and it obligated the company to pay within fixed limits of amount compensation for injuries to persons resulting from the negligent operation of the truck. The policy expressly excluded from its coverage bodily injury to an employee while engaged in the employment of the insured. W. T. Willis and Loper were employed by the insured as drivers of the truck. They left Brownsville, Texas, with the truck loaded with fruit and were bound for Fargo, North Dakota. Each was supposed to drive half of the time. The truck was equipped with a sleeper cab to the rear of the driver's cab. Near Concordia, Kansas, Loper became ill and requested Willis to drive for him. Willis complied with the request, and Loper retired to the sleeper cab. When the truck reached a point in North Dakota, it overturned and Loper sustained personal injury. Loper had not driven since becoming ill and requesting Willis to drive for him, and he was in the sleeper cab at the time of the accident. Loper instituted suit against Lanier and the insurance company to recover damages for his injury. The action was dismissed as to the insurance company, and judgment was rendered against Lanier. Thereafter, Loper caused to be issued a writ of garnishment against the insurance company on the ground that it was indebted to Lanier. By answer, the insurance company admitted the issuance of the policy but pleaded that Loper was an employee of Lanier; that the policy specifically excluded from its coverage injury of an employee; that the injury sustained by Loper was not covered by the policy; and that therefore the company was not indebted to Lanier. At the conclusion of the hearing on the issue joined in that manner the court concluded among other things that Loper was not engaged in the employment of Lanier at the time of the accident; and that the insurance company was indebted to Loper for the amount of the judgment previously rendered against Lanier. Judgment was entered against the company and it appealed.

An insurance policy is a contract, and the rules established for the construction of written instruments apply to contracts of insurance equally with other contracts. A policy of insurance which is free from ambiguity must be construed according to its terms taken in their plain, ordinary, and accepted sense. But if the terms of a policy are ambiguous, obscure, or open to different constructions, the construction most favorable to the insured or other beneficiary must prevail. Samson v. United States Fidelity & Guaranty Co., 131 Kan. 59, 289 P. 427; Utilities Insurance Co. v. Potter, 188 Okl. 145, 105 P.2d 259, 154 A.L.R. 512. If the terms of a policy are ambiguous or open to doubt in respect to coverage, the question should be resolved in favor of the insured or other beneficiary. Mendel v. Fort Scott Hydraulic Cement Co., 147 Kan. 719, 78 P.2d 868. And that rule applies to an ambiguous or doubtful provision in a policy which attempts to exclude from the coverage liability in certain circumstances. Spence v. New York Life Insurance Co., 154 Kan. 379, 118 P.2d 514, 137 A.L.R. 753; Great Northern Life Insurance Co. v. Cole, Okl., 248 P.2d 608. But these well recognized general rules of construction do not lend support to the judgment against the insurance company for the reason that the crucial provision in the policy on which the case turns is not ambiguous, obscure, or open to different constructions. By clear and incisive language entirely free from doubt or obscurity, it provides that bodily injury of an employee while engaged in the employment of the insured is excluded from the coverage.

It is an established principle of law that where one is employed to do specific work without any agreement or understanding that as an incident to the employment, the employer will furnish transportation to and from the place at which the service is to be performed, but as a mere matter of accommodation or gratuity the employer does transport the employee to and from the place of work, the employee is not engaged in the employment of the employer while being transported, within the intent and meaning of an exclusion or exempting provision of the kind here in question. B. & H. Passmore Metal & Roofing Co. v. New Amsterdam Casualty Co., 10 Cir., 147 F.2d 536; Elliott v. Behner, 150 Kan. 876, 96 P.2d 852; Green v. Travelers Insurance Co., 286 N.Y. 358, 36 N.E.2d 620; State Farm Mutual Auto Co. v. Skluzacek, 208 Minn. 443, 294 N.W. 413. But Loper was not employed by the hour or to do piece work. He was employed by the week. It was his duty to drive the truck half of the time and he received the same compensation whether actually driving or riding along in order to be at his post of duty and available for service when his turn came to drive. Throughout the entire trip he was either serving in a driving capacity or in a standby capacity in furtherance of the business of the insured. Two drivers being necessary to operate the truck in furtherance of the business of the employer, and the constant moving of the truck being in furtherance of the business, it was essential to the business of the insured that Loper remain on the truck and accompany it while the other driver was at the wheel. The business of the insured could not be carried on in the desired manner unless Loper did remain on the truck throughout the trip, whether driving or not. It was implicit in the employment that he remain on the truck while the other driver was driving in order to be ready and available to drive when his shift came. It was equally implicit in the employment that he occupy the sleeper cab at least part of the time while not driving in order to be refreshed and able physically to drive safely during his shift. At the moment of the accident, he was on the truck and occupying the sleeper cab in fulfillment of his employment and in furtherance of the business of the insured. He was an employee engaged in the employment of the insured at the time of the accident and resulting injury within the intent and meaning of the exclusion provision in the policy to which reference has been made. Getlin v. Maryland Casualty Co., 9 Cir., 196 F.2d 249.

The Motor Carrier Act of 1935, as amended, 49 U.S.C.A. § 301 et seq., empowers the Interstate Commerce Commission to make reasonable rules and regulations governing carriers by motor vehicle with respect to safety of operation; and reasonable rules and regulations promulgated by the commission within the scope of its permitted authority under the Act have the force and effect of law. Interstate Motor Lines v. Great Western Railway Co., 10 Cir., 161 F.2d 968. Under that grant of power it is the duty of the commission to regulate motor carriers by promulgating reasonable requirements to promote safety of operation and to that end prescribe qualifications, maximum hours of service of employees, and standards of equipment. In the exercise of that power and in the discharge of that duty, the commission has promulgated regulations. Section 191.1(c), section 191.1(g), section 191.3 (b), and section 193.4, 49 Code Federal Regulations 204, 205, 212, provide:

"A driver is on duty from the time he begins to work or is required to be in readiness to work until the time he is relieved from work and all responsibility for performing work. Time spent by a driver resting or sleeping in a berth as defined in paragraph (g) of this section shall not be included in computing time on duty."

"The term `berth\' means a berth or bunk on the motor vehicle which is properly equipped for the purpose of sleeping,

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