Seaboard Fire & Marine Insurance Company v. Daniel Gibbs , 392 F.2d 793 ( 1968 )

BUTZNER, Circuit Judge:

Seaboard Fire & Marine Insurance Company appeals a declaration that it is required to defend and respond in damages that its insured may suffer under provisions relating to a non-owned automobile found in a liability insurance policy issued Daniel Gibbs.¹ We believe the policy did not afford coverage, and reverse.

Gibbs, a farm hand driving his employer’s truck, injured Thaddeus Brisbane. Seaboard insured Gibbs against liability arising out of use of his own pickup truck (not here involved) and some, but not all, non-owned automobiles. Seaboard refused to defend Brisbane’s suit against Gibbs, and, invoking the diversity jurisdiction of the district court, brought this action for a declaratory judgment.²

I.

On the threshold question, we agree with the district judge that the truck driven by Gibbs met the policy definition of an automobile — “ * * * a four wheel land motor vehicle designed for use principally upon public roads * * *.” Seaboard recognizes that the definition of an automobile includes a truck. This concession is inescapable because the policy was written to cover Gibbs’ pickup truck. Gibbs’ employer’s truck is not within the definition, Seaboard claims, because it had six wheels— two on the front axle and four on the rear axle — instead of four wheels as specified in the policy definition. The literalness of this contention is attractive, but it is not in accord with well settled principles of South Carolina law. The terms of an insurance policy must be construed liberally in favor of the insured, and where the words of the policy are capable of two reasonable interpretations, the construction more favorable to the insured should be adopted. See Myers v. Calvert Fire Ins. Co., 246 S.C. 46, 142 S.E.2d 704, 705 (1965). The policy’s definition of an automobile is designed to exclude vehicles such as motorcycles, golf carts, and heavy equipment with treads.³ “Four wheels” is simply a generic term. The truck Gibbs drove could have been used with four wheels. The evidence discloses no significant change in function by the optional use of dual wheels on the rear axle.

II.

Seaboard insured Gibbs when he was using a non-owned automobile within the scope of permission granted by its owners. The policy defines a non-owned automobile as “ * * * an ‘automobile not owned by or furnished or available for the regular use of * * * the named insured * * * ’.” When the accident occurred, Gibbs, acting within the scope of the permission granted to him, was driving his employer’s truck. The principal issue is whether the truck was “furnished or available for the regular use of” Gibbs. The district judge accurately summarized the evidence in his opinion, Seaboard Fire &Marine Ins. Co. v. Gibbs, 265 F.Supp. 623, 626 (D.S.C.1967):

“The named insured Daniel Gibbs was a forty-eight year old resident of Wadmalaw Island who worked for Messrs. A. W. Leland and K. W. Leland as a farmhand on their farm. He had worked for them for more than fifteen years, and he was in their employ at the time of the accident. For the last seven or eight years Gibbs had been driving trucks for the Le-lands in connection with their agricultural operations. Gibbs was the only hand on the Leland farm that was qualified to drive the truck, and it was one of his duties to take the truck home at night and to return with it in the morning and to transport other farmhands to and from the Leland farms. The evidence shows that this involved no deviation from Gibbs’ route to and from his place of employment. On some occasions Gibbs was driven home by his employers, and on those occasions the truck was not left with him. On occasions Gibbs was allowed to keep the truck at his home over the weekend.

“Of the three trucks operated by the Lelands, Gibbs was authorized from time to time to drive them all, but he regularly drove the Chevrolet which was involved in the accident. That truck was a two axle truck with tandem rear wheels. It could be operated with four wheels, but in the normal course of operation, and without exception so far as the record shows, it was operated with six wheels.

“The Leland farms employed only some five regular hands but at times— such as setting crops or gathering crops — other workers would be hired. It was customary for those workers who wanted the additional jobs at setting time or harvest time to wait on the road in the early morning for Gibbs to come by on his way to the farm. Gibbs would pick them up as a matter of course and take them with him to the Leland farm where they would be hired if needed by the Le-lands. Gibbs worked regularly, and he was paid weekly for the days he had worked. If he worked less than a week, he was paid for only the number of days that he actually worked. The additional laborers employed at times were, presumably, employed by the day.

“During this cabbage setting season the Lelands employed a work force of approximately twenty-five to thirty workers. Only a portion of these would wait for the coming of the truck on the road for transportation to the farms. Whether all of these workers were employed every time they reported is not apparent from the record. Some regular workers were transported to work on the truck, depending on the fields to be worked that day, but the Lelands maintained that they did not consider anyone on the job until they had reported for work and had received assignments. The transportation of the laborers was admittedly to the benefit of the Le-lands. The Lelands considered that the bringing of the farmhands to work was on their business. According to Aaron W. Leland the truck was not assigned to Gibbs. The principal duty of Gibbs, as his employer considered it, was to drive tractors for production and not, simply, to transport the workers. The transportation duties were on occasion taken by Mr. Aaron Leland himself.”

The clause, “furnished for regular use,” has been interpreted by the Supreme Court of South Carolina in two recent cases. Grantham v. United States Fidelity & Guar. Co., 245 S.C. 144, 139 S.E.2d 744 (1964), denied coverage to a deputy sheriff who used an automobile furnished by Beaufort County on a full time basis in the performance of his duties and for personal purposes in the county. At the time of the accident, the officer had obtained special permission to drive the automobile on a personal trip outside the county. The court said (139 S.E.2d at 746):

“Insofar as it affects this case, the policy in question extends coverage to the insured if the injury is sustained while occupying an automobile other than the one defined in the policy, if the other automobile is not ‘furnished for the regular use’ of the insured or her husband. The purpose of such policy provisions is to afford coverage for the infrequent and casual use of vehicles other than the one described in the policy, but not to cover the insured with respect to his use of another vehicle which he frequently uses or has the opportunity to use. The intent is clear to protect the insurer from a situation whereby an insured could purchase a policy covering one automobile and be covered without qualification as to all automobiles available for his use.” ⁴

With immaterial interruptions, Gibbs used his employer’s truck daily for seven years. Under the principles expressed in Grantham, his frequent use of the truck precludes coverage.

The other recent South Carolina case is Glisson v. State Farm Mut. Auto. Ins. Co., 246 S.C. 76, 142 S.E.2d 447 (1965), where the Supreme Court held that a jeep used by a person on temporary duty as officer of the day for the state National Guard was not furnished for regular use. The court pointed out (142 S.E.2d at 451):

“At the time of injury, Cheezem was temporarily engaged in the duty of Officer of the Day, thus performing a different duty than that normally required of him. The ‘jeep’ was not furnished for his regular use but, rather, was assigned to him for use in performing the duty of Officer of the Day. There is no evidence in the record as to how frequently Cheezem used this ‘jeep’; however, his use thereof was necessarily limited as he could only use this vehicle if it was properly dispatched to him.”

The circumstances the court found lacking in Glisson are present in the case before us. Gibbs was performing the duty that was normally required of him, the truck was furnished for his regular use in performing the duty, and there is evidence in the record that he used the truck almost daily over a number of years.

The defendants rely in part upon State Farm Mut. Auto. Ins. Co. v. Smith, 206 Va. 280, 142 S.E.2d 562 (1965), in which the owner, before going to sea with the navy, left his automobile with his wife and gave his sister-in-law permission to drive it when needed. The court held the sister-in-law was afforded liability coverage under her own policy as the driver of a non-owned automobile.

For two reasons we believe State Farm is not applicable. The Supreme Court of Appeals of Virginia said (142 S.E.2d at 567):

“We interpret the language ‘furnished to the named insured for regular use’ as referring to the furnishing for the insured’s own purposes, and not the furnishing for the owner’s or his family’s purposes, with incidental permission for use by the insured for her purposes.”

We believe the Supreme Court of South Carolina would not place this construction upon the policy issued to Gibbs. Neither Grantham, which held a similar clause unambiguous, nor Glisson turns upon such a limited interpretation.

Secondly, the Virginia court was impressed by the fact that the owner apparently did not give his sister-in-law blanket permission to use the car. The sister-in-law interpreted the terms of the permission as requiring further permission from the owner’s wife each time she wanted to drive. Gibbs, however, was under no similar restriction. While he was employed, the truck was available for his regular use in the performance of his normal duties. His employer’s unexercised right to withdraw permission did not make his regular use of the truck casual.

We conclude that the truck was furnished or available for Gibbs’ regular use; it did not meet the policy definition of a non-owned automobile; consequently, Seaboard did not afford Gibbs coverage for the accident.

III.

Assuming arguendo that the employer’s truck meets the definition of a non-owned automobile, we believe coverage is excluded because of the work Gibbs was performing at the time of the accident. The policy contained these exclusions :

“This policy does not apply:

* * *

“(a) to any automobile while used as a public or livery conveyance * * *;

“(b) to any automobile while used in the automobile business * * *;

“(c) to a non-owned automobile while used in any other business or occupation except a private passenger automobile ⁵ operated or occupied by the named insured or his private chauffeur or domestic servant, or a utility trailer used therewith or with an owned automobile;”

If Gibbs was engaged in his business or occupation as a farm hand, the exclusion applies. The defendants urge that Gibbs simply was driving from his home to his place of employment when the accident occurred, and that neither he nor the men in the truck could be considered employed until they actually checked in at the farm.

In Glisson v. State Farm Mut. Auto. Ins. Co., 246 S.C. 76, 142 S.E.2d 447, 449 (1965), the Supreme Court of South Carolina held that the synonyms business and occupation are comprehensive terms that have very broad meaning and may be used in many different connotations. The court cited with approval definitions from Webster’s International Dictionary (2d ed.):

business: “Constant employment; regular occupation; * * * any particular occupation or employment habitually engaged in, especially for livelihood or gain.”

occupation: “That which occupies, or engages, the time and attention; the principal business of one’s life; vocation ; business.”⁶

Application of these definitions makes clear that Gibbs was engaged in his business or occupation as a farm hand. When the accident occurred, Gibbs was transporting laborers for the benefit of his employer. This was part of his job.

Generally, with respect to workmen’s compensation, an employee going to his place of work is not engaged in performing any service growing out of and incidental to his employment. South Carolina recognizes two exceptions, Gallman v. Springs Mills, 201 S.C. 257, 22 S.E.2d 715, 718 (1942):

“(1) Where in going to and returning from work the means of transportation is provided by the employer * * *;

“(2) Where the employee, on his way to or from his work, is still charged with some duty or task in connection with his employment.”

The analogy to the workmen’s compensation law is not controlling, but it is instructive. Gibbs’ transportation of the laborers in his employer’s truck places him within both exceptions.

We conclude that even if the truck was a non-owned automobile within the policy definition, Gibbs’ work at the time of the accident excluded coverage.

The judgment of the district court is vacated and this case is remanded for the entry of judgment for Seaboard Fire & Marine Insurance Company against the defendants and each of them.

Vacated and remanded.

1 . Seaboard Fire & Marine Ins. Co. v. Gibbs, 265 F.Supp. 623 (D.S.C.1967).

2 . Brisbane’s cause of action against Gibbs’ employer is not an issue in this case. Previously Brisbane sued the employer and settled his case, reserving his rights against Gibbs.

3 . In Brown v. Security Fire & Indem. Co., 244 F.Supp. 299, 302 (W.D.Va.1965), the court prefaced a thorough catalogue of definitions by observing, “Defining the word ‘automobile’ is not as simple as might appear on first blush * *

4 . Accord: Pennsylvania Threshermen & Farmers Mut. Cas. Ins. Co. v. Robertson, 259 F.2d 389 (4th Cir. 1958), cert. den., 359 U.S. 950, 79 S.Ct. 735, 3 L.Ed.2d 683 (1959); Campbell v. Aetna Cas. & Sur. Co., 211 F.2d 732 (4th Cir. 1954) ; Commercial Ins. Co. of Newark, N.J. v. Gardner, 233 F.Supp. 884 (E.D.S.C.1964) ; Aler v. Travelers Indem. Co., 92 F.Supp. 620 (D.Md.1950).

5 . A private passenger automobile is defined in the policy to mean a private passenger' or station wagon type automobile. For that reason there is no contention that the truck falls within the exception of subdivision (c) of the exclusions.

6 . The court held that participation in National Guard activities other than on a full tíme basis is not a business or occupation encompassed by the policy provisions. Glisson v. State Farm. Mut. Auto. Ins. Co., 246 S.C. 76, 142 S.E.2d 447, 451 (1965); contra, Blackwell v. United States, 321 F.2d 96 (5th Cir. 1963); Voelker v. Travelers Indem. Co., 260 F.2d 275 (7th Cir. 1958).