I-L Logging Co. v. Manufacturers & Wholesalers Indemnity Exchange

ROSSMAN, J.

This is an appeal by the plaintiff from a declaratory decree of the circuit court, which held that a policy of liability insurance issued by the defendant to the plaintiff did not protect the latter against the liability which it incurred June 21,1947, when a motor vehicle operated by the plaintiff, and in which some of its employees were being transported from their place of employment to their living quarters, overturned, resulting in the death of some and in the injury of others. Following the misadventure, many actions were filed against the plaintiff. The challenged decree was entered after trial. The plaintiff submits 19 assignments of error.

The policy of liability insurance which the defendant issued to the plaintiff bound the defendant

“to pay on behalf of the Insured [appellant] all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law * * *, for damages * * *, because of bodily injury, * * * including death at any time resulting therefrom, sustained by any person or persons”.

The policy also contained this provision:

“This policy does not apply # * * to (a) * * * any employee of the Insured while engaged in the employment of the Insured * # *, or (b) any obligation for which the Insured or any company as his insurer may be held liable under any workmen’s compensation law”.

The defendant contends that the exclusion clause just quoted rendered the defendant nonliable for the losses which the plaintiff suffered June 21, 1947. The plaintiff takes the opposite position. The resulting issue is the principal one submitted by this suit.

The first and fifth assignments of error read as follows:

“The trial court erred in finding that the injuries and death of appellant’s employees were sustained while engaged in appellant’s employment. ’ ’

“The court erred in refusing to find that the liability and obligation of appellant for the injuries and deaths was not a liability under nor an obligation imposed by any workmen’s compensation law. ’ ’

We will now consider the first of those assignments of error and, ancillary to it, the seeond. At the time of the accident which caused the injuries and deaths that gave rise to the actions against the plaintiff, the latter was engaged in logging operations in rough, rugged country. Many years ago when it began its operations, the timber was within walking distance of the camps which the plaintiff maintained for its employees, but, as more and more trees were felled, the distance between the areas where the men worked and where they lived increased to such an extent that the plaintiff faced a transportation problem. At the time of the accident which we have mentioned some of the plaintiff’s loggers lived in a camp six miles from where they worked and some in homes 25 or 30 miles from their work. When the plaintiff first faced the transportation problem, it rented to the men a truck which they used in going to and from their work. The men operated the vehicle through an employees’ association, but, due to the recurrent turnover in their ranks, the maintenance of the association proved difficult. Eventually the plaintiff resorted to the means of transportation which it employed when the accident which we have mentioned took place. The method which it adopted was to haul the men back and forth in busses, known as “crummies”.

Mr. John L. Hawkins, plaintiff’s manager, explaining in part the evolutionary process which led to the plaintiff’s inauguration of bus service, gave this testimony :

“It started during the war when tires and gasoline were rationed and the men couldn’t get to and from their work by their own automobiles and car pools were formed and it was still not satisfactory, and most all of the companies put on busses at that time and the men liked it so well that we were never able to get rid of them and we continued after the war.”

According to Mr. Hawkins, the plaintiff had eight busses which were used solely for the transportation of the men. The one which brought death and injury to its occupants carried 18 men at the time of the misadventure. The plaintiff owned the busses, paid the drivers and all other expenses. No charge was made to the men who rode in the busses. When a bus became disabled, the plaintiff at times substituted a vehicle which the witnesses termed a flatbed.

The evidence warrants a belief that the plaintiff supplied the bus service to its men because it was good business for it to do so. For example, Mr. Hawldns made this statement:

“Q Now, you, I-L Logging Company, considered that the furnishing of this crummy transportation was in the best interests of the I-L Logging Company and in the promotion of its business, did you not, that is why you did it?

“A I believe that is a fair statement.

“Q And it is also a fair statement to say that you, I-L Logging Company, furnished this transportation to assist the men in connection with their employment with you, that is a fair statement, too, isn’t it?

“A I believe so.”

A belief is justified that the busses were the only practical means whereby the men could go to and return from the place of their employment. One of the employees gave this testimony:

“Q Was there any way for you to go up there and get back, other than the crummy?

“A No.”

The following is taken from the testimony of one of the crummy drivers:

“Q Do you know of any way that was available to the men, to get up to the Cox Creek landing, other than riding in your crummy?

“A It was either in my crummy or else in the boss’s pick-up truck.

“Q Sometimes somebody rode with the boss?

“A Sometimes. They hardly ever did.

# # #

‘ ‘ Q Were the men urged to ride in the crummies ?

“A It was either ride in it or don’t, there was no other way of getting up there unless it was with the boss in the pick-up.

“Q It was either ride in it or not work?

“A That is right.”

We do not believe that the foregoing and other testimony to like effect indicating that the crummies were the only practical means of going back and forth is questioned by the plaintiff.

The record indicates that when men were taken into plaintiff’s employ they were told, in the event they inquired concerning the subject, that the plaintiff furnished transportation to and from the woods. For example, the plaintiff’s foreman, who had charge of the hiring of the men, testified:

“Q When men would ask you for a job, they would discuss the job and ask how they would get to and from their work?

“A Some of them.

“Q Some of them did that?

“A Yes.

“Q And those that asked you how they got to and from their work, you would tell them as part of the employment arrangement that I-L Logging Company would agree to transport them?

“A Yes.”

The crummies, their safety, and grievances arising out of them were at times features of negotiations between the plaintiff and the labor union which represented its employees. One witness swore that a labor contract negotiated by the union granted the men the right to free transportation.

At the place where the accident which underlies this suit occurred, the bus was running upon a private logging road which the plaintiff had constructed and over which it had exclusive control. Access to the road was controlled by a gate and a watchman in the plaintiff’s employ. Parts of the road were planked and other parts were dirt. It was a single-lane road although at places turnouts were provided so that in the event a log truck met another vehicle, such as a crummy, the two could pass. The following part of the findings of fact is fully justified by the evidence:

“ * * * it was not too safe or practical a practice for the men to use their own cars to go to and from said logging operations and this was not generally done; that there was not sufficient parking space for private vehicles at the place of actual logging operations and that said road and access to said operations was not suitable for private cars.”

The accident under review occurred upon a severe grade and happened when the vehicle was returning the men to their homes at the close of the day’s work. Somehow it escaped from the driver’s control, plunged over an embankment and overturned. Several of the men were killed and many were injured.

The wages of the plaintiff’s employees started when they reached the place of their work in the woods and stopped when the whistle blew at the landing, except for men who were deep in the woods. Those few were paid for walk-out time. The men who rode in the busses were not paid for the time so spent and performed for the plaintiff no duties while riding.

The findings of fact state:

“At all times material herein, plaintiff was engaged in a hazardous occupation within the purview of the Workmen’s Compensation Law of Oregon; that prior to the issuance of defendant’s policy of insurance to the plaintiff, plaintiff herein had elected not to contribute to the industrial accident fund of Oregon, and had insured its liability to its employees by securing an employer’s liability policy, issued to plaintiff by Lloyd’s Underwriters at London, * *

The findings of fact also state:

“* * * the injuries to or death of the workmen, referred to in the plaintiff’s complaint and supplemental complaint, were received at said time and place while engaged in the employment of the plaintiff, under the circumstances aforesaid, and also arose out of and in the course of said employment.”

Another finding declares the following:

“Any liability, if any, .which existed on the part of the plaintiff to its workmen and/or their representatives or beneficiaries, for injuries of death in this accident, was, under the circumstances applicable to this accident, a liability for which the workmen could have recovered under the Workmen’s Compensation Law of Oregon, had they been under that Act; that, also, the injuries and/or death suffered by plaintiff’s employees in and as a result of said accident, were received and suffered by them while engaged in the employment of plaintiff I-L Logging Company; that none of said injured or deceased workmen were domestic employees.”

On or about June 24, 1947, the plaintiff demanded that the defendant assume liability under its policy of insurance and notified defendant that, in the absence of assumption of such liability, the plaintiff would negotiate settlement. June 25, 1947, the defendant communicated to the plaintiff its denial of liability under its policy and claimed that any loss to or liability of plaintiff resulting from the accident came under the exclusion clause which we have quoted. Still later the actions which we have mentioned were filed. One of them which went to trial resulted in a verdict and judgment against the plaintiff in this case. Thereafter the other claims were settled. The foregoing suffices as a statement of the controlling facts.

By reverting to the paragraph of this opinion which quotes from the exclusionary clause of the policy of insurance issued by the defendant to the plaintiff, it will be noticed that the policy does not provide protection for the plaintiff if injury was incurred by “any employee of the Insured while engaged in the employment of the Insured”. The parties, in well written briefs, have called to our attention a wealth of authority which bears upon the construction of the exclusion clause.

Lamm v. Silver Falls Timber Co., 133 Or 468, 277 P 91, 286 P 527, 291 P 375 (appeal denied 282 US 812, 51 S Ct 214, 75 L ed 727); and Varrelman v. Flora Logging Co., 133 Or 541, 277 P 97, 286 P 541, 290 P 751 (appeal denied 282 US 813, 51 S Ct 214, 75 L ed 728), presented facts substantially similar to those in the case at bar. They were decided 24 years ago. Each of the plaintiffs in those cases was employed in a logging camp and each was injured while being transported by his employer upon the employer’s logging railroad. Since the Lamm and Varrelman cases were decided, log truck roads have gained favor over logging railroads. In those cases the logging railroad was the most practical means which the workman had for going back and forth between his place of employment and the nearby towns where he purchased his clothing, sought recreation and attended to his other needs. Both of the employers, defendants in those cases, permitted their employees, as incidents of the contract of employment, to use the logging railroad as their means of transportation. Succinctly stated, the two decisions held that, since the men were injured upon the employer’s premises and by hazards to which their employment subjected them, each was injured in an “accident arising out of and in the course of his employment”, as that phrase is used in § 102-1752, OCLA (OES 656.152). In reaching its result, the court sought to give to the employees the coverage for industrial hazards which is contemplated by workmen’s compensation legislation.

The holdings in the Lamm and Yarrelman cases appear to warrant a belief that if compensation had been sought from the industrial accident fund (§ 102-1735, OCLA, OES 656.452 and 656.466) for the unfortunate mishap which occurred June 21, 1947, and if the employer [this plaintiff] had been a contributor to the fund, an order would have been entered awarding compensation.

When an employee of a contributor to the industrial accident fund sustains an injury and seeks compensation from the fund, he must show that his injury was the result of an “accident arising out of and in the course of his employment”. As we have seen, the Lamm and the Yarrelman decisions held that injuries sustained in accidents closely paralleling the instant one arose out of and in the course of the workman’s employment.

But the plaintiff points to the fact that the exclusionary clause of the policy of insurance which the defendant issued does not employ the language of the workmen’s compensation law. It argues that the words “engaged in the employment of the Insured” found in the policy do not mean the same as “arising out of and in the course of his employment”, as those words occur in the workmen’s compensation law. According to the plaintiff, the unfortunate occupants of the crummy had finished their day’s work and were no longer “engaged” in the plaintiff’s employment when they entered the vehicle. They were members of the common public when the casualty occurred, so the plaintiff insists. In support of its claim that the words of the exclusionary clause are not the equivalent of “arising out of and in the course of”, the plaintiff cites Francis v. Scheper, 326 Mich 441, 40 NW2d 214, and B. & H. Passmore M. & R. Co. v. New Amsterdam Casualty Co. (10 Cir), 147 Fed2d 536. It believes that the Lamm decision supports its view. The plaintiff acknowledges that Lumber Mutual Casualty Co. v. Stukes (4 Cir), 164 Fed2d 571, takes a position contrary to the holdings in the Francis and Passmore decisions. The Passmore decision was written by Judge Phillips and the Lumber Mutual by Judge Parker. The Lumber Mutual decision cited the Pass-more opinion but declined to follow it. It indicated that “confusion in the law” would result from efforts to distinguish between the phrase used in exclusionary clauses and those in workmen’s compensation laws. The briefs of the parties give much space to the four decisions just mentioned. We will now examine those decisions, not only for the purpose of determining whether they assigned different meanings to the language of the exclusionary clauses and those of workmen’s compensation acts, but also for the purpose of ascertaining the legal principles which guided the courts in reaching their conclusions.

In the Francis ease, the plaintiff was a painter whose work took him to various places. His employer’s name was Houck. The plaintiff was injured while riding home, at the close of the day’s work, in a truck which Houck owned. Houck had agreed, as an incident of the contract of employment, to transport the plaintiff to and from his work. The mishap occurred while another of Houck’s employees was driving the truck. The plaintiff recovered judgment against Houck and, upon the latter’s failure to discharge the the judgment, instituted garnishment proceedings against Houck’s insurer. That turn of events resulted in the decision now under review. The policy of insurance excluded coverage for “bodily injury to or death of any employee of the insured while engaged in the employment other than domestic of the insured”. The insurer, as garnishee, in arguing that the plaintiff, while riding home in Houck’s truck, was “engaged in the employment” of Houck, depended in part upon the holdings in compensation cases in which courts have ruled that a workman, injured while availing himself of transportation furnished by his employer, received his injury in an accident which arose out of and in the course of the employment. The plaintiff, upon the other hand, stressed the facts that (1) his injury befell him after the close of his day’s work; (2) he was at liberty to go home by any means that he preferred; (3) he was not paid for the time spent in traveling home; and (4) he had no duties to perform for Houck while he was being transported. According to him, he was merely collecting part of his pay [his ride home] when he was injured. The court, in holding that the policy’s exclusionary clause did not bar the plaintiff, declared that provisions such as “arising out of and in the course of his employment” found in workmen’s compensation laws receive liberal construction because measures of that kind are remedial in nature, but that ambiguous terms such as “engaged in the employment” which occur in exclusionary clauses of policies of liability insurance are strictly construed against the insured. In support of its holding it cited B. & H. Passmore M. & R. Co. v. New Amsterdam Casualty Co., supra. It held that “engaged in the employment” means active in the work which the plaintiff was employed and paid to perform.

We now turn to the Passmore decision. As we have stated, it was written by Circuit Judge Orie L. Phillips. Circuit Judge Huxman concurred and Circuit Judge Bratton dissented. The facts in the Pass-more case were substantially similar to those in the case just reviewed. In the Passmore case, the employee, whose name was Little, lost his life while riding home at the close of his day’s work in his employer’s truck. The employer, a corporation entitled B. & H. Passmore M. & R. Co., was engaged in the roofing business and had a shop in Oklahoma City. The nature of Passmore’s work required Little to 'go to various places in covering structures with roofing. On the day of the fatality Little had worked at a place nine miles from Passmore’s shop. Little frequently drove his own automobile to and from the places where he performed his work, but the trial court found that, by implication, he was entitled to transportation. He was paid upon an hourly basis and received no pay while going to or returning from the place of his work. Upon the death of Little the latter’s widow instituted an action against Passmore for damages upon charges of negligence. Passmore thereupon demanded that New Amsterdam Casualty Company, which had issued it a policy of liability insurance, defend the action. A provision of the policy follows: “This policy does not apply: * * * to bodily injury to 'or death of any employee of the insured while engaged in the business, other than domestic employment of the insured,”. The insurer denied liability and presently instituted 'a suit for a declaratory judgment as to the rights and duties of the parties. The trial judge sustained the insurer’s position and held that under the exclusion clause Little was an employee engaged in his employment at the time of the fatality. Upon appeal, the Circuit Court of Appeals at first affirmed the trial court’s ruling, but later, upon rehearing with Judge Bratton dissenting, withdrew its decision and reversed the trial judge. Its final opinion spoke of the case as “a borderline case”. In reversing itself, it employed the reasoning which was later adopted by Francis v. Scheper which we reviewed in the preceding paragraph. The decision upon rehearing, written by Judge Phillips, held that the words of the policy “engaged in the business” mean that the individual whom the insurance company wishes to exclude must have been “active” in the business of the insured at the time of the accident, and that Little’s situation as a passenger did not suffice. The opinion stated that workmen’s compensation legislation receives liberal construction, whereas policies of insurance are construed in favor of the insured. It commented upon the fact that courts, in seeking the meaning of contracts, endeavor to discern the real interest of the parties, that is, their mutual understanding, but that since statutes are devoid of the element of mutual understanding, their construction presents only the problem of giving effect to the intention of the legislature. The court did not expressly state that the terms “while engaged in the business * * * of the insured” and “arising out of and in the course of his employment” do not mean the same, but it is clear that since the one group appears in a policy of insurance and the other in a statute, it attached different consequences to their use. The opinion cited, in support of its holding that Little was not engaged in the business of Passmore at the time of the casualty, Green v. Travelers Insurance Co., 286 NY 358, 36 NE2d 620, Elliott v. Behner, 150 Kan 876, 96 P2d 852, and State Farm Mutual Auto Ins. Co. v. Skluzacek, 208 Minn 443, 294 NW 413. In the Green case, the injured workman was a berry picker whose contract of employment, neither by express words nor by implication, entitled him to transportation. At the time of his injury he was on his way to the berry fields in his employer’s truck. The decision said:

“ * * * In such case the transportation was a gratuity and not a part of May’s employment. * * * Where the employer gives the employee a ride merely as a matter of accommodation, the ride is a gratuity and not a part of the employment. ’ ’

The policy of insurance issued by the defendant excluded liability to “any employee of the insured while engaged in the business of the insured.” The decision affirmed the judgment of the trial court against the insurer. Two members of the court dissented. In Elliott v. Behner, one Albert Elliott, whose death while riding in a truck driven by the defendant was the subject matter of the ease, was an employee of Montgomery County which was the owner of the truck. The truck was used for transporting county employees from place to place. The men were under no duty to ride in it and when they availed themselves of the privilege of being conveyed home in it at the close of the day’s work, they paid no fare. The trial judge found that conveyance in the truck was an implied condition of the contract of employment, but the Supreme Court took no sides upon that issue. The action which led to the decision under review was not filed against the county hut against the employee of the county who drove the truck. The fatality occurred when the defendant was driving the truck home at the termination of the day’s work. After judgment had been recovered and the defendant had failed to satisfy it, a writ of garnishment was levied upon the Employers Casualty Company which had issued a policy of insurance to the county. The policy named as the “assured” not only the county but also “any other person * * * while using such automobile * * * provided that such use is with the permission of the named Assured”. The exemption clause contained this phrase, “while engaged in any business or occupation of the Assured”. The trial court entered judgment against the garnishee. With two members dissenting, the appellate court affirmed the judgment. The fact that the defendant in the negligence action was not the employer but the driver of the truck seems to indicate that the liability which was invoked against the insurer was under the public, as distinguished from the employer, clauses of the policy. The decision said: “The trip home in the truck was no part of his employment.” In State Farm Mutual Auto Ins. Co. v. Sklusacek, one of the defendants, Skluzacek, was a farmer who had hired the other defendant, Sibell, a 16 year old boy, and some other boys to weed an onion field. Upon an occasion when Skluzacek was about to drive his truck from his home to the onion field, a quarter of a mile distant, the boys jumped on the truck to get a ride. After the truck had reached the field and the boys had alighted, the truck bumped into Sibell. The plaintiff had issued a policy of insurance which denied protection “for bodily injury to any employe of the insured while engaged in the business of the assured.”

The trial judge found

“ ‘that the riding on said truck’ by Sibell ‘was gratuitous and permissive, a mere favor, and not in furtherance of’ the employer’s ‘business, nor did the riding become by implication part of the employment contract,’ and that ‘said employe owed his employer no duties except for the fieldwork in the onion field.’ It concluded that when Sibell received ‘said injuries, he was not an employe engaged in the business of the assured.’ ”

The decision under review was based upon a suit for a declaratory judgment which the insurer had filed. The decree of the lower court was affirmed.

It will be observed that in the Green and Farm Mutual cases, the injured persons were not entitled to transportation as a part of their contracts of employment. In the State Farm Mutual case, the injured boy merely helped himself to a ride. In the Elliott case, the defendant was not the employer.

We now return to the Passmore decision. We have taken note of the rules of construction which it employed and of the three decisions which it cited in its support. The opinion declined to hold that the term “while engaged in the business * * * of the insured” has the same meaning as “arising out of and in the course of his employment. ’ ’ In expressing itself, the court said:

“No doubt, under certain particular situations there would be no doubt that the employee either was or was not engaged in the business of his employer. But, in a borderline case, such as is here presented, we think the rule of strict construction of the exclusion clause has legitimate application.”

We come now to Lumber Mutual Casualty Insurance Co. v. Stukes—a suit for a declaratory judgment. Although an ancillary issue which the suit developed must be mentioned, in all essentials the case was a counterpart of the Passmore suit. In the Lumber Mutual case, one Marshall, who owned a truck and to whom the plaintiff had issued a policy of liability insurance, was engaged in the roofing business. The policy covered the truck with an omnibus clause which defined the word “insured” as including “any person while using the automobile ° * * provided the actual use of the automobile is with the permission of the named insured.” The policy’s exclusion clause provided that coverage did not apply to “bodily injury to or death of any employee of the insured while engaged in the employment.” One Timmons put on the roofing under the contracts which Marshall obtained. Timmons performed his work with the help of several laborers, one of whom was Eugene Stukes. Timmons, with Marshall’s approval, carried the laborers to and from their work in Marshall’s truck. Upon the occasion which resulted in the case under review, Timmons, while driving the truck home at the close of the day’s work, collided with another vehicle and Stukes was killed. After the administrator of Stukes ’ estate had filed an action against Marshall to recover damages for the death, the plaintiff [insurance company] instituted the suit under review to obtain a declaration of rights and duties. The administrator of Stukes’ estate, as a part of his effort to prove that Stukes was a passenger while riding in the truck, and not an employee, presented evidence that three per cent of Stukes’ wages was deducted for transportation. Marshall admitted that he made the deduction, but, according to the decision, the amount “was in reality deducted to pay unemployment insurance, which the South Carolina statute forbid an employer to deduct from an employee’s wages.” The trial court entered judgment for the defendant upon a directed verdict. The judgment was reversed by the Circuit Court of Appeals in the decision now under review. The decision of the latter court, written by Judge Parker, took note of the fact that under the evidence conflicting inferences could be drawn concerning Timmons ’ status. One inference would deem him an independent contractor, the other as Marshall’s foreman. The decision stated that it was clear that Marshall paid the laborers their wages and made the bookkeeping entries. The court held that if Timmons was Marshall’s foreman, as the plaintiff argued, Stakes was clearly the employee of Marshall. But, on the other hand, if Timmons was an independent contractor, then he [Timmons] was an additional insured within the purview of the provision of the policy, which reads: “Any person while using the automobile * * * with the permission of the named Insured”. If Timmons was an independent contractor, and if Stakes was his employee, the policy of indemnity insurance would be available to Timmons. Accordingly, it was necessary to determine whether when Stakes lost his life he was “engaged in the employment” of his employer, regardless of whether the latter was Marshall or Timmons. Thus we see that the case presented the same basic issue as the Passmore case. The decision held that “the purpose of the exclusionary clause is to limit coverage to liability for injury to members of the general public and to exclude liability to employees of the insured.” In holding that Stakes was engaged in his employment at the time of the fatal mishap, the decision said:

“And we do not think that the exclusion clause can be held inapplicable on the ground that Stakes was not ‘engaged in the employment’ of either Marshall or Timmons at the time of the accident, but was riding in the truck as a ‘fare paying passenger.’ The evidence shows beyond question that he was transported to and from work as an incident of his employment, whether 3% was deducted from his wages on this account or because of the requirement that unemployment insurance be paid. Such transportation was a part of his contract of employment ; and there can be no question that under the law of South Carolina he enjoyed the status of an employee engaged in the employment at the time of the accident which resulted in his death. * * * As said by Chief Justice Baker of the Supreme Court of South Carolina in the Ward case, just cited [188 S.C. 233, 198 S.E. 387]: ‘Appellant has cited numerous cases from other jurisdictions holding that in going to and returning from the place of employment, if it is a part of the contract that the employee be furnished by the employer transportation or the means of transportation to and from work, the employment continues during the transportation, but we need go no farther than the decisions of this court. The case of Covington v. A. C. L. R. R. Co., 158 S.C. 194, 155 S.E. 438, cites with approval the case of Sanders v. Railway Company, 97 S.C. 50, 81 S.E. 283, and holds that an employee returning from his work by means of transportation furnished him for that purpose by the employer is still engaged in the discharge of the duties of his employment. While these cases were brought under the Federal Employer’s Liability Act 45 U.S.C.A. § 51 et seq., the principle is the same, and is here applicable.’

“See also Johnson v. Aetna Casualty & Surety Co., 5 Cir. 104 F.2d 22; and State Farm Mutual Automobile Ins. Co. v. Brooks, 8 Cir., 136 F.2d 807, where persons being carried home from work in a motor vehicle of the employer were held employees and engaged in the business for which employed within the meaning of just such an exclusion clause as is here involved. To the contrary is B. & H. Passmore M. & E. Co. v. New Amsterdam Casualty Co., 10 Cir., 147 F.2d 536. We are not impressed by the argument that, because of what is said to be the attitude of South Carolina courts towards insurance policies, a person in South Carolina is to be held an employee ‘engaged in the discharge of the duties of his employment’ for purposes of the Workmen’s Compensation Act, Code 1942, §7035-1 et seq., but not such an employee where an insurance policy is involved. There is no decision of the South Carolina courts to that effect; and in matters of this sort there is every reason why confusion in the law should be avoided. It should not be overlooked, furthermore, that these public liability policies are drawn with the express purpose of excluding injuries covered by workmen’s compensation laws. One of the provisions of the policy in question excludes any obligation ‘for which the insured * * * may be held liable under any workmen’s compensation law.’ ”

The Lumber Mutual decision, written by Judge Parker and the Passmore decision, which came from Judge Phillips, reached conclusions opposite to each other. Upon first reading the two decisions appear not to have employed the same rules. Judge Phillips concerned himself largely with the familiar rules that govern the construction of writings. He held that compensation legislation, being remedial in nature, should be liberally construed in favor of the workman and that exclusionary clauses in policies of insurance should be strictly construed against the insurer. Judge Parker was also concerned with the rules that govern the construction of writings, but approached construction from a different angle. He seemingly took as his polestar a belief that the purpose of exclusionary clauses is “to limit coverage to liability for injury to members of the general public and to exclude liability to employees of the insured.” Thus he tried to discern the actual purposes for which employers obtain insurance of that kind and the problem which they face. Having taken that view of the objectives of the exclusion clause, Judge Parker proceeded in a practical manner to determine whether a workman, who rides home in a conveyance provided by the employer as a part of the contract of employment, was still a workman “engaged in the business” of the employer while on his way home. We said that he proceeded with the inquiry just mentioned in a practical way, for he spoke of the constant necessity that courts face of not losing sight “of the substance of the relationship in attempting to apply rule of thumb distinctions.” Judge Phillips also saw that hard facts, rather than definitions, frequently settle issues of the kind that the two eases presented, for he said: “Under certain particular situations there would be no doubt that the employee either was or was not engaged in the business of his employer.” He termed the case before the court as a “borderline case.” The rules of construction which Judge Phillips employed are not of statutory rank. They are guides which experience has shown generally lead to the right result but which may be ignored when the record furnished the court with better indices to the party’s intentions. It seems clear that Judge Parker believed that the general purposes for which an employer obtains insurance protection constitutes a superior guide to the meaning of the policies. Although the issue which underlay the two decisions, when expressed in legal terms, takes the form in which the two decisions cast it, yet an employer who faces the problem of procuring protection for himself against potential damage actions which may be instituted by his employees and other protection against suits which members of the public may file, very likely would express the problem in a different way. Possibly an employer regards his relationship with his employees, whether they are in the shop actively running a machine or in a conveyance which he owns and in which he daily takes them to and from work, as very different from his relationship with the common public. He may feel that when the men are in the bus their status is no different from that which they hold when they are in other parts of his plant which he has provided for their convenience and for the additional purposes of promoting better relationships and of stimulating production. Pew plants contain nothing except the machinery of production, and it is rare that an employee keeps his nose to the grindstone for the entire day. Many plants include such facilities as lavatories, drinking fountains, lunch rooms, parking lots and assembly halls. Kowcum v. Bybee, 182 Or 271, 186 P2d 790, arose out of an injury which an employee suffered in a parking lot which the employer of both the plaintiff and the defendant maintained for his workmen. It may safely be assumed that facilities of the kind just listed are intended to serve the same general purpose as vehicles for the transportation of the workmen. Anything which attracts to the plant better workmen and induces them to put forth superior efforts gives the employer a greater return for the wages which he pays. In view of the problem of procuring protection from tort liability, it might never occur to the employer that some court would hold that when the workman stepped over the threshold of the factory door into a parking lot or into the company’s bus, he had left the plant. The employer might believe that his workmen were still his employees while they remained within his domain and were doing the things which he regarded as beneficial to superior production. Reflections of that kind may have prompted Judge Parker to his belief that “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.” The most difficult task is to ascertain the point at which the individual changes from an employee into a member of the common public. Judge Phillips believed that unless the employee was active in his work when the accident occurred he was not engaged in his work and was, therefore, a member of the common public. Under his interpretation, the exclusion clause demanded that the employee should be upon the production line actively participating in the work. Accordingly, when he was seated in the bus on his way home, he was not “engaged” in his work but was a member of the common public. Judge Parker held that under the exclusion clause the workman had not reverted to the common public when (1) the transportation back to his home was provided by the employer as an incident of the contract of employment, and (2) the injury was received under circumstances for which an award of workmen’s compensation would be ordered if the workmen’s compensation law were applicable; for, as the decision put it, “One of the provisions of the policy in question excludes any obligation ‘for which the insured * * * maybe held liable under any workmen’s compensation law.’ ” The foregoing completes our comparison of the two lines of reasoning.

Lamm v. Silver Falls Timber Co., which the plaintiff believes indicates that there is a difference in meaning between the terms, “injury arising out of and in the course of employment” and “engaged in the employment”, made no effort to indicate the manner in which the latter phrase should be interpreted. It was not concerned with any exclusion clause of a policy of insurance.

The Francis, Passmore and Lumber Mutual are only three of the decisions which the briefs of counsel have called to our attention, but the reasoning in them is typical of that which all of the decisions employ.

In addition to the Francis and Passmore decisions, Elliott v. Behmer, 150 Kan 876, 96 P2d 852, [with two justices dissenting] held that an employee, who, at the termination of his day’s work is given gratuitous transportation home, is not engaged in his employment while seated in the home-bound conveyance. Taking the opposite view and joining with the Lumber Mutual decision are Johnson v. Aetna Casualty & Surety Co., 5 Cir, 104 Fed2d 22; State Farm Mutual Automobile Ins. Co. v. Braxton, 4 Cir, 167 Fed2d 283; and Westcott v. United States F. & C. Co., 4 Cir, 158 Fed2d 20.

In Johnson v. Aetna Casualty & Surety Co., supra, the employer, one Frank Green, operated a small sawmill in South Carolina, 40 miles from the town in Georgia where he and his workmen lived. Each Monday morning when Green went to his mill he took with him in his truck his sawmill hands, and on the following Saturday when he returned home he brought them with him in the truck. Upon the occasion which resulted in the decision under review the truck collided with another, resulting in the death of one óf the workmen and the injury of another. Green had a policy of insurance issued by the plaintiff which protected him from damage claims arising out of the operation of the truck, but which contained an exclusion clause rendering the policy inapplicable “to bodily injury or to death of any employee of the insured while engaged in the business of the insured.” "When actions were threatened against Green, the plaintiff instituted a suit for a declaratory decree. In affirming the decree of the District Court, which held that the plaintiff was not liable under its policy, the Circuit Court of Appeals said:

“* * * The transportation to and from the mill was not expressly a term of the hiring of the hands, but had been afforded for several years, it was understood that they could ride if present when the truck started. We think the judge was warranted in concluding that the transportation was an implied term of the employment. The distance from the homes of the men to their work was so great that transportation must have been considered by both employer and employee. The ride was not for the mere convenience of the employee after his work was done, but was for the forwarding of the employer’s work in that it was necessarily provided to get these employees for the very moderate wages paid them. No one would doubt that to carry them forty miles to work on Monday was forwarding the sawmill enterprise, or would think the employer had discharged his obligations if he had left them in the woods forty miles from home on Saturday. It has often been held that employees riding free to and from their work in the employer’s vehicle continue to be employees and are not passengers, Ellington v. Beaver Dam Lumber Co., 98 Ga. 53, 19 S.E. 21; Railey v. Garbutt & Co., 112 Ga. 288, 37 S.E. 360; Roland v. Tift, 131 Ga. 683, 63 S.E. 133, 20 L.R.A., N.S., 354; Dwan v. Great Eastern Lumber Co., 15 Ga. App. 108, 82 S.E. 666; Great Southern Lumber Co. v. Hamilton, 137 Miss. 55, 101 So; 787; * *

‘ ‘ Since Johnson and Radford were when injured by the operation of the truck still employees of Frank Green, the policy clearly does not protect Green, for under Exclusions it provides: ‘This policy does not apply * ° * (e) to bodily injury or to death of any employee of the insured while engaged in the business of the insured * * ° or to any obligation for which the insured may be held liable under any workmen’s compensation law.’ Both in Georgia, where the employment contract was made and South Carolina where the work was to be done and where the injury occurred, there is a workmen’s compensation law, and one of them is applicable under our holding that Johnson was killed and Radford injured while yet employees in the course of their employment; but if a common law liability can be elected, the policy still by its terms does not apply.”

The foregoing completes our review of the authorities. In the cases of which we have taken notice, the injury was sustained while the conveyance was being operated upon a public thoroughfare. In those cases transportation in the employer’s vehicle was not the only practical method whereby the employee could go to and from his place of employment, with the exception of Johnson v. Aetna Casualty & Surety Co., supra. In the case at bar, the employees had no practical means whereby they could travel to and from their place of employment except in the busses which the plaintiff provided. Moreover, in the instant case, the route which was traveled was a private road which was under the exclusive control of the employer and. due to the rough and rugged lay of the land, travel upon the road was dangerous. Although in the cases above reviewed the vehicles were ordinary private automobiles or motor trucks, in the ease before us the conveyance was a bus which the plaintiff used exclusively for the purpose of transporting its workmen.

Our analysis of B. & H. Passmore M. & R. Co. v. New Amsterdam Casualty Co., supra, and Lumber Mutual Casualty Insurance Co. v. Stukes, supra, has persuaded us to the reasoning employed in the latter. We recognize, as Judge Phillips pointed out, that insurance policies, especially their exclusion clauses, must be strictly construed against the insurer and that, since workmen’s compensation legislation is remedial in character, it must be liberally construed in favor of the workingman. But when all of that has been done, the fact remains that policies such as the one before us are intended to grant employers no protection for injuries to their employees. Accordingly, the controlling issue is: at what point does an employee lose his identity as such and become absorbed in the general public. Until he has cast off his role as an employee and become merged in the general public, the policy affords his employer no protection against mishaps which may befall him.

It is easier in this case to decide the problem than to state with precision the rules which yielded the decision. In this case, the plaintiff still had the men under its control and within the facilities of its plant when the accident occurred. As long as the men were upon the plaintiff’s log truck road they were subject to the hazards of their daily work. If the men desired to continue their contracts of employment, there was no practical way in which they could escape the hazards of the crummies and none in which they could avoid the log truck road. The men rode in the crummies as an incident of their contract of employment. While they were being transported upon the log truck road they were exposed to dangers which the public did not encounter, for the members of the public were excluded from that road.

We have encountered no decision which endeavors to disclose any difference in meaning between ‘ ‘ engaged in the employment” and “arising out of and in the course of his employment.” The practical affairs of life, according to our belief, would gain nothing of consequence if a court should undertake to discover a difference in the connotation of these two groups of words. We do not believe that the Passmore decision holds that the two terms actually differ in meaning, but indicates that courts, in determining whether a workman was “engaged in his employment”, are more inclined to answer “no” than when they inquire whether he was engaged “in the course of his employment. ’ ’ The difference is one of judicial attitude rather than one of difference in phraseology. The difference has its origin in the fact that in the one case a contract of insurance is the subject of attention and in the other an item of remedial legislation. We can see merit in the distinction. In all other respects we embrace the Lumber Mutual opinion.

It will be recalled that the Passmore decision said: “Under certain particular situations there would be no doubt that the employee either was or was not engaged in the business of his employer.” Possibly those words foresaw a situation of the kind which is before us. It is obvious that the facts in the Passmore case and in the one at bar are materially different. The exemption clauses are similar, but otherwise the cases are different.

It seems clear that the plaintiff could not have carried on its business without providing a means whereby the workmen could reach the place of their labors and at the close of the day return to their dwellings. Transportation for the workmen was vital to the plaintiff’s operation and, in lieu of constructing a road upon which its workmen could operate their own cars, it was incumbent upon the plaintiff to haul its men back and forth. Provision for the carriage of the men was no less essential to the plaintiff’s operations than the log trucks which hauled the logs from the woods to the market. The crummies were as much an integral part of the plaintiff’s plant as the log trucks and the log truck road. We are satisfied that transportation for the men was an incidental, if not an express, term of the contract of employment between the plaintiff and its employees.

In Banc

William E. Walsh, of Coos Bay, and Howard K. Beebe, and Maguire, Shields, Morrison & Bailey, of Portland, for the petition.

When the men entered the busses in the morning and returned to them at the termination of the day’s labors, they did so because of the terms of their contract of employment. Unless they rode in the busses, no timber would be cut. As we have said, the busses were, for all practical purposes, a part of the plant. They played their role in the production of logs. At the time of the unfortunate accident, the men, according to our belief, were engaged in their employment because (1) they were the plaintiff’s employees; (2) they were still in the plaintiff’s plant; (3) they were still under the plaintiff’s control; (4) they were doing something which was essential to the plaintiff’s operations; and (5) their presence in the bus was, for all practical purposes, a condition of their contract of employment.

We find no merit in the assignments of error under consideration. Since we have taken that position, it is unnecessary to set forth our consideration of the other assignments of error.

The decree of the circuit court is affirmed. Costs and disbursements will not be allowed.