Ward v. State Farm Mutual Automobile Insurance Co.

• Decision Date: 05 February 1957
• Docket Number: No. 16281.,16281.
• Parties: William Max WARD, a minor, suing by his mother and next friend, Jewell Ward, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

241 F.2d 134 (1957)

William Max WARD, a minor, suing by his mother and next friend, Jewell Ward, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.

No. 16281.

United States Court of Appeals Fifth Circuit.

February 5, 1957.

Richard B. Emerson, L. Chandler Watson, Jr., Anniston, Ala., for appellant.

Herbert W. Peterson, Birmingham, Ala., for appellee.

Before RIVES, TUTTLE and BROWN, Circuit Judges.

RIVES, Circuit Judge.

This appeal is from a judgment entered on a jury verdict for the defendant holding, in effect, that the minor plaintiff was an employee of defendant's insured within the meaning of an exclusion clause of the automobile liability insurance contract.¹ The only issue is whether the Alabama statutory provisions regarding child labor prevented plaintiff, appellant, from becoming an "employee of the insured" within the meaning of that exclusion provision.

The liability insurance policy in effect at the time of the accident had been issued by the defendant, appellee, to its insured, one Mrs. Betty J. Stewart, agreeing to pay on her behalf all sums within the policy limit of $10,000 which she might become legally obligated to pay as damages because of bodily injury sustained by any person caused by accident occurring during the policy period, and arising out of the ownership, maintenance, or use of the Chevrolet automobile described in the policy. The policy also provided that no action shall lie against the insurance company until the amount of the insured's obligation to pay shall have been finally determined by judgment against the insured, and that any person who has secured such judgment shall thereafter be entitled to recover under said insurance policy.

The insured, Betty J. Stewart, was engaged in the occupation of delivering newspapers on a fixed route in a rural part of Calhoun County, Alabama. The minor plaintiff, appellant, was between sixteen and seventeen years of age. On Sunday morning, September 13, 1953, he was standing in his front yard when the insured drove up in her Chevrolet automobile while delivering newspapers. She asked the plaintiff to assist her in delivering the papers and collecting for them. He did so that day under her directions, for which she paid him $3. After school on the next afternoon, Monday, September 14th, he again helped her deliver her newspapers. The following day Tuesday, September 15th, he again helped her under the same arrangement, except that she told him she would pay him $20 per month for helping her and he replied that that was all right with him.

On that day, while the plaintiff was in the act of throwing a newspaper from insured's automobile and while she was driving, an accident occurred resulting in breaking both of the plaintiff's arms and otherwise injuring him.

A little more than a year later, on October 19, 1954, the plaintiff recovered on account of his injuries a final judgment for damages in the sum of $10,000 against the insured, the court finding that plaintiff's injuries had been proximately caused by the negligence of the insured in the operation of the automobile described in the policy.

The said judgment, together with interest thereon, and the costs of suit not being paid, the plaintiff instituted the present action under the terms of the liability insurance policy. The evidence in the district court was without conflict, and each party made a motion for a directed verdict. The district court denied both motions and submitted the matter to the jury,² subject to a later determination of the legal questions raised by said motions. The jury returned a verdict in favor of the defendant upon which judgment was entered. Thereafter, the district court denied plaintiff's motion to set aside the jury's verdict and the judgment entered thereon, and to enter judgment n. o. v. in accordance with plaintiff's previous motion for a directed verdict. This appeal followed.

The position of the appellant is admirably and succinctly stated in brief as follows:

"The appellant contended in the District Court, and his contention on this appeal is that it was impossible as a matter of law for him to have been an employee of the said Mrs. Betty J. Stewart within said exclusion (d) provision of said insurance policy at the time and place of the accident on September 15, 1953, in that he was between sixteen and seventeen years of age at said time * * *; that the Child Labor Laws of Alabama prohibit a person from employing any child between sixteen and seventeen years of age to work in any gainful occupation, except agriculture or domestic service, unless such person procures and keeps on file for the inspection of the officials charged with the enforcement of said Child Labor Laws an age certificate for such child; that the said Mrs. Stewart was engaged in the occupation of delivering newspapers on a fixed route in a rural part of Calhoun County, Alabama, for gain or profit * * * and had not procured an age certificate to employ the appellant in accordance with the Child Labor Laws of Alabama * * *; that said Child Labor Laws provide that any person who violates any of its provisions shall be deemed guilty of a misdemeanor and on conviction shall be punished by a fine; that said Child Labor Laws were enacted for regulation and protection, as distinguished from a law enacted solely for revenue purposes; that the relationship of employer and employee can arise only out of a contract, express or implied; that no contract, express or implied, can be made in violation of a law which was enacted for regulation and protection, as distinguished from a law enacted solely for revenue purposes; that the said Mrs. Stewart had the appellant work for her in violation of said Child Labor Laws; and, therefore, as a matter of law, the appellant was not an employee of Mrs. Stewart within said exclusion (d) provision of said insurance policy since there was no contract, express or implied, between the appellant and the insured, Mrs. Stewart, out of which the employer-employee relationship could arise."

Throughout our consideration of this case it must be remembered that the pole star by which we are to be guided in construing the policy is the same as that applicable to contracts generally, namely, the intention of the parties. The pertinent rules of construction have been well set forth by the Supreme Court of Alabama.

"Insurance policies, as a general rule, should be liberally construed, and the language used in them should usually be given its ordinary common interpretation. No strained or unusual construction should be given to any of the terms of a policy of insurance, in favor of the insurer or of the insured; but when a clause in such a policy, when read in connection with all the other parts of the policy, is uncertain in its meaning, and is capable of two equally rational constructions, that construction should be placed upon the clause which is most favorable to the insured." Empire Life Ins. Co. v. Gee, 178 Ala. 492, 60 So. 90, 92.

"* * * policies of insurance must be construed more strongly against the insurer; still the words of the policy must be given the meaning which they ordinarily bear, and, where it is manifest, as it is in the instant contract, that the intention of the insurer and the insured was that liability should attach only in given circumstances, the law will uphold the contract according to its true intent and import." Kilby Car & Foundry Co. v. Georgia Casualty Co., 209 Ala. 356, 96 So. 319, 320.

"* * * The true intent governs insurance contracts the same as others. While doubtful terms are construed in favor of the insured, no strained construction should be indulged to raise doubt." Home Loan & Finance Co. v. Fireman\'s Fund Ins. Co., 221 Ala. 529, 129 So. 470, 471. Quoted and approved in Transcontinental Mutual Insurance Co. v. Harrison, 262 Ala. 373, 78 So.2d 917, 922.

"* * * In ascertaining the intent of the parties the language of the policy will be given its common interpretation, and only clauses which are uncertain will be construed favorably to the insured." The Praetorians v. Hicks, 234 Ala. 451, 175 So. 258, 259.

In the absence of statute in Alabama, contracts of a minor for the performance of services are voidable merely at the election of the minor. Langham v. State, 55 Ala. 114; Waugh v. Emerson, 79 Ala. 295; Cleveland v. Towle, 21 Ala.App. 161, 106 So. 58, reversed on other grounds, Ex parte Towle, 213 Ala. 129, 106 So. 60. The employment of a minor at a dangerous work without the consent of his parent is a common-law wrong, but is not actionable except in tort when the work is inherently dangerous and injury proximately results from such danger. Garrett v. Louisville & N. R. Co., 196 Ala. 52, 71 So. 685, 687. The common law in Alabama would not, therefore, prevent the plaintiff from being an employee of defendant's insured.³

Appellant relies particularly upon the following provision of the 1940 Code of Alabama, Title 26, Chapter 7, Article 3, on "Child Labor":

"* * * no firm, person or corporation shall employ, permit or suffer any child between sixteen and seventeen years of age to work in any gainful occupation, except agriculture or domestic service, unless such person, firm or corporation procures and keeps on file for the inspection of the officials charged with the enforcement of this article, an age certificate as hereinafter provided, for every such child, between sixteen and seventeen years of age * * *." Title 26, § 352.

Other sections provide for the issuance of age certificates by the superintendent, or if no superintendent, then by the principal of a school, upon the personal application of the child accompanied by his parent or guardian disclosing various specified items of information, including the person for whom and kind of work to be performed, the days and hours of employment, the age of the child, and

"* * * a statement signed and dated by any county health officer or

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