Southern Farm Bureau Casualty Insurance Co. v. Bohls

ARCHER, Chief Justice.

This is a suit for a declaratory judgment to determine the extent of the coverage provided by an automobile liability insurance policy issued by the appellant to the appellee Jesse G. Bohls. Appellant sought a declaration that it was not obligated under the terms of that policy to defend any damage suit that might be brought by certain farm laborers arising out of an accident, occurring on August 10, 1955, or to pay any judgment that might be recovered by virtue of such suit against the appel-lees Jesse G. Bohls or his wife, Erna Bohls. Trial was to the court sitting without a jury and judgment was rendered in favor of the defendants.

The appeal is founded on one assignment of error and is that:

“The Trial Court Erred in Holding that the Automobile Liability Insurance Policy Issued by Appellant to Appellee Jesse G. Bohls Provided Coverage with Respect to Claims of Farm Laborers Arising out of the Automobile Accident of August 10, 1955.”

The facts in this case are undisputed, and consist oí a stipulation and the testimony of Jesse Bohls.

The stipulations are that on August 8, 1951, the policy was issued, obligating the Insurance Company to pay within the limits of the policy all sums that the assured might become legally obligated to pay as damages, caused by accident and arising out of the ownership of a certain pickup truck. The policy was for a continuous term, renewed at six months intervals by payment out of the premiums by Jesse G. Bohls, and no new policy was ever issued, but a premium notice was given Bohls, showing the date the premium was paid and that the policy remained in force. The policy was a Texas Standard policy. The policy was in full force and effect at all times material to this cause.

“That on the date it was issued the policy contained a series of paragraphs which were captioned ‘Exclusions’ and provided in part the following:

“ ‘Exclusions:

“ ‘This policy does not apply:

“‘(a) Under any of the coverages, while the automobile is used as a public or livery conveyance, unless such use is specifically declared and described in the policy and premium charged therefor;

«⅛ * * ⅜ * ⅜

“‘(d) Under coverages A and C, to bodily injury to or sickness, disease or death of any employee of the insured while engaged in the employment, other than domestic, of the insured or in domestic employment if benefits therefor are either payable or required to be provided under any workmen’s compensation law.’

“IV.

“Subsequent to the issuance of the policy described in paragraph I of this stipulation and prior to the renewal of said policy by the defendant, Jesse G. Bohls, by payment of the semiannual premium due on August 4, 1955, the Board of Insurance Commissioners of the State of Texas entered an order providing that after April 1, 1955 no company should issue an automobile insurance policy unless the wording of paragraph (d) under the heading of ‘Exclusions’ in said standard policy form would read as follows:

“ ‘(d) Under coverage A, to bodily injury to or sickness, disease or death of any employee of the insured arising out of and in the course of (1) domestic employment by the insured, if benefits therefor are in whole or in part either payable or required to be provided under any workmen’s compensation law, or (2) other employment by the insured.’

“The material part of said order is as follows:

“ ‘No insurance company issuing these policy forms for writing automobile insurance in the State of Texas shall issue, for motor vehicle insurance coverage in the State of Texas, any contract of insurance or any policy form except as herein provided to be effective on and after 12:01 A.M., April 1, 1955. Companies may continue to issue their current supply of present policies (December 1, 1947 edition) provided a letter of interpretation is filed with the Casualty Insurance Commissioner stating that the policy made obsolete by these revisions will be interpreted so as to afford any broader coverage granted by the revised forms as to the same coverages. In like manner, companies may also interpret outstanding policies written prior to April 1, 1955, so as to afford any broader coverage granted by the revised forms. The use of these policy forms is mandatory on and after 12:01 'A.M., August 1, 1955.’

“Plaintiff Southern Farm Bureau Casualty Insurance Company had, prior to the renewal on August 4, 1955 of the policy of Jesse G. Bohls described by paragraph I, changed its printed Texas standard automobile insurance policy forms in accordance with the change prescribed by the Board of Insurance Commissioners in the wording of Section (d) of ‘Exclusions’, whereby the wording of said section was changed from that quoted by paragraph III above to that quoted in this paragraph IV. No change was made on the face or on the pages of policy No. 515095 held by Jesse G. Bohls, and no new policy was ever issued by the plaintiff to Jesse G. Bohls at any time material to this suit, and no rider or other instrument in writing containing any change of wording was ever issued by plaintiff to Jesse G. Bohls at any time material to this suit.

“The defendant Jesse G. Bohls did not know that the Texas Board of Insurance Commissioners had changed the wording of the Texas standard automobile insurance policy form, and the defendant Jesse G. Bohls was never notified by the plaintiff, nor did he ever receive any notice of any kind or character at any time material to this cause that the plaintiff contended that the Board of Insurance Commissioners had changed in any respect the wording of said defendant’s contract of insurance with plaintiff.”

The accident occurred on August 10, 1955, while Mrs. Erna Bohls, wife of Jesse G. Bohls, was driving the pick-up from the Bohls farm to Pflugerville, after the day’s work had been done and Dorothy Isaac and Roxie Burr were being transported to Pflugerville, the truck partially overturned and Dorothy Isaac and Roxie Burr were injured.

Jesse G. Bohls testified that he was engaged in farming and that he had brought a load of pickers from Pflugerville to his farm, having made a trade with them to pull cotton on a basis of $1.25 per hundred pounds and agreed to furnish a ride from Pflugerville to his farm, morning and evening, to those pickers who would make such rides; the only instructions he gave the pickers was to begin on one side of the field and pick through and to pick the rows clean; that he did not tell the pickers what, or how many hours to work, or exercised any control as to rest periods; that the pickers quit when they wanted to, but they quit generally about sundown; that he never had fired any pickers, but could have if the work was not satisfactory.

As is set out above the prime question is the effectiveness and the applicableness of the exclusions in the policy, and particularly coverage (d):

“Under coverages A (Bodily Injury Liability) and C (Medical Payments), to bodily injury to or sickness, disease or death of any employee of the insured while engaged in the employment, other than domestic, of the insured or in domestic employment if benefits therefor are either payable or required to be provided under any workmen’s compensation law.”

It is not seriously contended that the order of the Board of Insurance Commissioners directing that, in the future in all policies issued, that the exclusion as to employees engaged in the employment of the insured should be revised so as to exclude injury to any employee arising out of and in the course of employment by the insured, is applicable to appellees, Dorothy Isaac or Roxie Burr.

No rider or notice of any change in the policy was ever given Mr. Bohls. The policy was continuous, and the premiums paid. Under these circumstances it was binding on appellant. See Moreland v. Knox, Tex.Civ.App. Austin 268 S.W.2d 744, writ ref. N.R.E.

We find no Texas cases in point on the question of whether the farm laborers were “engaged in the employment” when injured.

In Passmore Metal & Roofing Co. v. New Amsterdam Casualty Co., 10 Cir., 147 F.2d 536, 537, the policy excluded “ * * * any employee of the insured while engaged in the business * * * of the insured * * The Court there said:

“At the time of the accident Little was not engaged in any work and was not performing any service for Pass-more and he was not receiving any pay for his time. He was simply riding from the place of work to Pass-more’s shop in a conveyance gratuitously furnished by Passmore. * * *

“Moreover, the exclusion clause ‘engaged in the business, * * * of the insured’ differs materially from the clause ‘arising out of and in the course of his employment.’ The word ‘engaged’ connotes action. In Barnett v. Merchants’ Life Ins. Co., supra [87 Okl. 42, 208 P. 271, 272], the court, in construing a clause in the policy ‘shall engage in military or naval service in time of war,’ held that the word ‘engage’ denotes action and that it means to take part in by performing some duty.

“In Head v. New York Life Ins. Co., 10 Cir., 43 F.2d 517, 520, this court said: ‘Engage,’ is,defined in Words and Phrases, at [14 A. page 188], as follows : ‘ “Engage” means to take part in or be employed in, however the employment may arise;’ and at page [196] as follows: ‘To “engage” is to embark in a business; to take a part; to employ or involve one’s self; to devote attention and effort.’

“No doubt, under certain particular factual 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. Clearly, the exclusion clause here involved is not less ambiguous than the clause ‘engages in military or naval service’ or the clause ‘arising out of and in the course of his employment.’ To the former the Supreme Court of Oklahoma has applied the rule of strict construction and to the latter the rule of liberal construction. Hence, we are constrained to hold,' in the light of the Oklahoma decisions, that Little at the time of the accident was not ‘engaged in the' business’ of Pass-more.”

Other cases are cited by the court in support of its decision.

We see no valid distinction between being “engaged in the business of the insured” and being “engaged in employment” of the insured.

It is obvious here that the farm workers were not performing any service for their employer when injured. In fact, he was performing a service for them by furnishing their transportation.

We conclude that since the farm' laborers were not engaged in their employment, that appellant is liable under its policy and bound to defend the suit.

The judgment of the Trial Court is affirmed.

Affirmed.