Employers' Liability Assur. Corp., Ltd. of London v. Portland Electric Power Co.

NETERER, District Judge

(after stating the facts as above). The only point argued before this court is the relation the employee bears to the Workmen’s Compensation Law of Oregon (Or. L. § 6605 et seq.). It is clear that the policy covers others than those in the employ of the insured; and where the employer is engaged in more than one business, he may come under the aet as to one business and stay out as to the other, and by filing the necessary notices he is excluded from the act. State ex rel. Marshall v. Roesch, 108 Or. 371, 216 P. 749. The employer being “out of the aet,” there is nothing in the record or the law to show tt&t the employee was within or under it. The provisions are purely a matter of election; the plan is proposed; if accepted, the employer and employee are within or under the aet; if rejected, each is relegated to the courts for all remedial relief. Evanhoff v. State Ins. Accident Com., 78 Or. 503, 154 P. 106.

Under section 6614 of the Oregon Laws, all employees in any hazardous occupation are subject to the provisions of the Workmen’s Compensation Aet, unless the employer files with the commission written notice of the election not to be subject thereto. It is admitted that the employer, defendant, did file with the commission the required statutory notice, and that it was not subject to the Workmen’s Compensation Aet, supra. State ex rel. Marshall v. Roesch, supra. Employees of an employer subject to the act are subject thereto, unless written notice of election not to be subject thereto is given by the employee to the employer. Sections 6615 and 6623, Oregon Laws. In Evanhoff v. State Industrial Accident Com., supra, the Oregon Supreme Court said that the employer may be exempt from the provisions of the aet, and. his exemption exempts the employee. “ * * * The act leaves the employer free to act or to reject them as he may see fit.” If the employer rejects the provisions of the act, then, in the event of injury, he is stripped of certain of the defenses specified in the statute, such as negligence of a fellow servant and assumption of risk. The covering clause of the policy provides:

“Agreement IY. This policy covers, except as provided in agreement V, bodily injuries, including death at any time resulting therefrom, accidentally sustained by any person or persons while within or upon the premises described in the declaration, or the premises or the ways adjacent thereto or elsewhere, by reason of the occupation, the use, the maintenance, the ownership, or the control of the said premises by the assured, as described in the declaration, including the making of such repairs and ordinary alterations as are necessary to the care of the said premises and their maintenance in good condition.”

“Exclusions. Agreement V. This policy shall not "'cover injuries or death * * * (6) to any employee of the assured under any workmen’s compensation act or law.”

The plaintiff in error contends that the phrase, “under any workmen’s compensation act or law,” is not limited, and that it is immaterial whether, under a compensation law, the employer elects to disclaim the benefits the employees are still “under the act,” but that the employer imposes upon himself “obligations more onerous than the compensation law confers, by the removal of the common-law defenses,” and that condition A of the policy, which provides, “the premium of this policy is as expressed in item 3 of the declaration, except as his policy covers injury * * * to employees of the assured, in which ease, as to such coverage, the premium is based upon the entire remuneration * * * earned during the policy by all persons employed by the assured in 'the said business operations as expressed in item 3 of the declaration,” emphasizes this contention. To this we cannot agree.

Item 3 of the declaration refers to employees “engaged in the maintenance, care, and upkeep” of the buildings, and then sets forth the remuneration of the employees; but this is clearly upon a different base estimate, “remuneration earned,” and covers particular employees, those engaged in the maintenance, care and upkeep of the building designated at .05 per hundred. It is clear that all of plaintiff’s employees are not engaged in the maintenance, care, and upkeep of the building, and no doubt this was intended as adequate premium to cover all of plaintiff’s employees so engaged or otherwise. But the public is also included and this condition caflnot be invoked to modify the engagment of agreement IY, which covers injuries to any person or persons while within or upon the premises. This plainly covers the general public, as well as the employees, however engaged, and condition A is clearly distinct from the subject treated by agreement Y, and is merely a regulation for the adjustment of premiums to be paid.

When the employer rejected the act on the record before this court, the employee was not under the act, and the exemption from liability under the terms of the policy cannot obtain.

The terms of the policy we think clear; but, if a doubt did exist, it should be construed most favorably for the insured. Am. Surety Co. v. Pauly, 170 U. S. 133, 18 S. Ct. 552, 42 L. Ed. 977; Moore v. Ætna Life Ins. Co., 75 Or. 47, 146 P. 151, L. R. A. 1915D, 264, Ann. Cas. 1917B, 1005, and cases cited.

The judgment is affirmed.