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

277 July rehearing Argued petition 21, 1953, 13, affirmed October denied October COMPANY v. MANUFACTURERS & I-L LOGGING INDEMNITY EXCHANGE WHOLESALERS 2d 212 273P. 2d 226

275P. Maguire Beebe, K. of Port- F. Howard Robert appellant. argued With them for on land, the cause Bay, Walsh, of Coos were E. the brief Maguire, William Bailey, of Portland. Morrison & Shields, argued respondent. George cause Jr., Black, Kendall, of Portland, were Black On the brief & Bay. of Newhouse, Coos MeKeown & ROSSMAN, J. declaratory by plaintiff appeal from a

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

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

The contained this provision: # * * “This does apply to (a) * * * of the any employee Insured while en * # gaged or Insured *, any obligation which (b) the Insured or any as his insurer be company held liable may under workmen’s compensation law”. The defendant contends that the exclusion just clause rendered the defendant nonliable quoted for the losses suffered June 1947. The plain- position. tiff takes the opposite The resulting issue submitted principal is the one this suit. fifth assignments first and error read as

follows:

“The trial court erred in finding that the in- and death of juries appellant’s employees were sustained while engaged appellant’s employ- ’’ment. “The court erred in refusing find that liability obligation for the appellant injuries deaths was not under nor an liability obliga- ’’ imposed by any tion workmen’s compensation law. now consider We will the first those assignments and, it, the ancillary of error seeond. At the time caused injuries of the accident which the and deaths the actions against rise gave plaintiff, latter logging operations in rough, rugged country. Many years ago began it when operations, walking within timber was distance camps plaintiff which the maintained for its employees, as more but, and more trees felled, were the distance between areas men worked where they an where lived increased to such extent that plaintiff transportation problem. faced a At the time of the accident which we have mentioned some plaintiff’s loggers camp lived six miles they from where worked and some homes 25 or 30 plaintiff miles from their work. When the first faced transportation problem, it rented to the men a going truck used to and from their work. operated through employees’ The men the vehicle but, due to the association, turnover in their recurrent proved ranks, the maintenance association diffi- Eventually plaintiff cult. resorted to the means transportation employed which it when the accident place. which we have mentioned took The method which adopted was to haul the men back and forth in busses, known as “crummies”. plaintiff’s manager, explain-

Mr. John L. Hawkins, part ing evolutionary process which led to the plaintiff’s inauguration gave of bus service, this testi- mony : during gaso-

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

According eight to Mr. Hawkins, the solely transportation busses which were used for the brought injury of The one which death the men. occupants men at time of the carried 18 the to its paid plaintiff busses, the misadventure. The owned charge expenses. all other No was the drivers and a to men rode in the busses. When made who the plaintiff at times substituted disabled, bus became termed a flatbed. vehicle the witnesses a belief that the The warrants evidence supplied to men was bus its because it service example, good For Mr. for to do so. business it this statement: Hawldns made you, Logging Company, “Q I-L considered Now, furnishing crummy transportation that this Logging I-L in best Com- was interests you promotion pany in did business, you why is did it? not, that fair statement. “A that is a I believe say to “Q And it also fair statement Logging Company, you, portation this I-L furnished trans- in their to assist the men connection with you, statement, is a fair it? too, isn’t believe so.”

“A I only justified were the busses A belief is go whereby practical men could to and means employment. place of their One from the return testimony: gave employees this go any way you up there “Q there Was crummy? get than the back, other “A No.” testimony following from one is taken crummy drivers: way you that was avail- “Q know Do get up land- Cox Creek men, able to crummy? riding your

ing, than other crummy my or else “A It was either pick-up truck. boss’s somebody

“Q Sometimes rode with the boss? They hardly “A Sometimes. ever did.

# # # ‘‘ urged Q the men to ride in ? Were the crummies “A It or was either ride there don’t, way getting up no other the boss there unless it was with pick-up.

“Q It either ride it or not work? right.” “A is That foregoing We do not believe that the and other testi- mony indicating like effect that the crummies were only practical going means back forth and questioned by plaintiff. record

The indicates that when men were taken plaintiff’s employ they into told, were event they inquired subject, concerning plaintiff that the transportation furnished to and from the woods. For example, plaintiff’s charge who had foreman, hiring men, testified: you job, they “Q men When would ask for a job get

would discuss the and ask how would to and from their work?

“A Some of them.

“Q Some of them did that?

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

The their aris- ing negotiations of them were at out times features of plaintiff repre- and the labor union between employees. witness sented One swore that a labor negotiated by granted contract the union the men the right transportation. to free place where the accident which underlies

theAt running upon private a occurred, this suit the bus was logging constructed and had road which control. Access to the over which it exclusive gate by a and a watchman in the road was controlled planked plaintiff’s employ. Parts of the road were parts single-lane It was a road and other were dirt. although provided places that in at turnouts were so log such vehicle, met another event truck pass. following part crummy, the could The two findings fully justified by fact is the evidence: * “ * * prac- practical a safe or too go to use own cars to for men to their tice operations logging and this was not from said park- generally there not sufficient done; that place space private ing at the of actual vehicles logging operations and road and access that said private operations was not suitable for to said cars.” upon a review occurred severe accident under returning happened

grade when the vehicle was day’s at the close work. to their homes of the men escaped plunged from the control, driver’s Somehow embankment and overturned. Several of over an many injured. killed and were men were employees wages plaintiff’s started of when The place they in the their work woods and reached the landing, except stopped whistle blew at when the deep in the woods. Those few for who were were men paid men time. The who rode for walk-out paid spent per- for the time so and busses were riding. plaintiff no while for the duties formed findings of fact state: The plaintiff material was en- herein, “At all times occupation pur- gaged within the hazardous view of Law of Workmen’s Compensation to the issuance Oregon; prior of defendant’s of insurance herein policy had plaintiff, plaintiff not to acci- elected contribute to the industrial dent to Oregon, liability fund of and had insured its

its employees by employer’s liability securing issued policy, plaintiff by Lloyd’s Underwriters * * at London, of fact also state: findings “* * * the or death injuries to of the work- men, referred to in the and plaintiff’s complaint said supplemental complaint, were received at time and while in the place engaged aforesaid, under the circumstances plaintiff, also arose out course of said em- ployment.”

Another finding declares the following: if

“Any liability, .which existed on the any, part to its workmen their plaintiff repre- and/or sentatives or beneficiaries, injuries death accident, was, this under the circumstances ap- plicable this accident, for which the liability workmen could have recovered under the Work- men’s Compensation Law of Oregon, been under Act; that, also, the injuries and/or death suffered by plaintiff’s employees in and as a result of accident, said were and suf- received them while fered of the employment I-L plaintiff Logging Company; that none of said or injured deceased workmen were domestic em- ployees.” or about June 24, 1947,

On plaintiff demanded the defendant assume liability its policy under of insurance notified defendant that, in the ab- such assumption liability, sence the plaintiff would settlement. negotiate June 1947, the defendant to the communicated denial liability and policy under its claimed that any loss to or liability 286 resulting plaintiff from the accident came under the quoted. have clause we Still later

exclusion which have mentioned filed. which One actions we were trial in a and resulted verdict them which went against plaintiff judgment in this case. Thereafter foregoing claims settled. The controlling other were suffices as a statement of facts.

By reverting paragraph opinion of this to the exclusionary quotes clause of from which by plaintiff, to the of insurance issued the defendant provide pro- that the does be noticed will injury if was incurred tection employee “any of the Insured while parties, employment in well Insured”. The our a wealth have called to attention written briefs, authority upon bears the construction of clause. exclusion Co., 133 277 468, v. Timber Or

Lamm Silver Falls (appeal denied P P 291 P 375 282 US 527, 286 91, 727); L and v. 75 ed Varrelman Flora 214, 51 S Ct 812, Logging P P286 290 P Co., 541, 97, 541, 133 Or 277 (appeal L ed 214, 282 51 S Ct denied US substantially 728), presented similar to facts those They years ago. decided 24 Each at bar. were the case employed plaintiffs in those cases was of the injured being camp logging each while trans and employer’s logging employer ported his cases were the Lamm Varrelman railroad. Since gained log log favor have over truck roads decided, logging ging railroad In those cases the railroads. practical means which workman most place going forth his back and between had for purchased nearby he towns where sought clothing, his attended recreation employers, defendants Both other needs. those their cases, permitted employees, incidents the of to use the of contract rail- employment, logging road as their means transportation. Succinctly that, the two decisions held the stated, since men were injured the and employer’s premises by hazards to their subjected each employment them, an injured in “accident out arising of and in the his employment”, course of as that phrase is used 656.152). § OCLA In 102-1752, (OES re- reaching its to the court to the sult, sought give the employees for industrial hazards which coverage is contemplated workmen’s legislation. compensation in the Lamm and holdings Yarrelman cases warrant a belief that if appear had compensation been from the industrial sought accident fund 102- (§ 1735, OCLA, 656.452 OES and un- the 656.466) fortunate which occurred mishap 21, June and if the plaintiff] had employer [this been contributor fund, an the order would have been entered awarding compensation. an

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

But the to the fact plaintiff the exclu- of insurance sionary clause which the issued does not employ defendant the language workmen’s It argues law. compensation words in the “engaged Insured” found do not mean the same as “arising out of employment”, as those words and in the course According compensation law. in the workmen’s occur occupants of the plaintiff, the unfortunate to the day’s no crummy and were finished their work plaintiff’s employment “engaged” longer when They were members of the the vehicle. entered casualty public so the occurred, when common support plaintiff of its claim that words In insists. equivalent exclusionary are not clause “arising of”, in the course out of Scheper, 40 441, 214, 326 Mich NW2d v. Francis cites v. New Amster M. & R. Co. H. Passmore B. & (10 Cir), Casualty It believes Fed2d 536. Co. dam plain supports its The view. Lamm decision the that Casualty acknowledges Mutual Co. v. that Lumber tiff position (4 Cir), a takes con 164 Fed2d Stukes holdings Passmore trary in the Francis and to the decision was written The Passmore decisions. by Judge Phillips Judge the Lumber Mutual the Pass- Mutual decision cited Lumber The Parker. opinion it. It indicated follow but declined to more from efforts the would result in law” “confusion exclusionary phrase distinguish used in the between compensation laws. in workmen’s and those clauses give space parties to the four much the briefs of The just will now examine those We mentioned. decisions determining only purpose of the for decisions, meanings they assigned lan to the different whether exclusionary of clauses and those work guage the purpose compensation but also for acts, men’s guided legal principles ascertaining reaching their conclusions. in courts painter plaintiff a was ease, the Francis In places. various His em- him to took work whose injured plaintiff Houck. The was ployer’s name was riding day’s in work, at the of the home, while close agreed, as Houck owned. Houck had truck which transport employment, of the contract an incident mishap plaintiff from his to and work. The oc- driving employees curred while another of Houck’s judgment against The truck. recovered discharge upon the latter’s failure to and, Houck garnishment judgment, proceedings instituted against Houck’s insurer. That turn events resulted under The insur- the decision now review. coverage “bodily injury to or death ance excluded employee while in the insured The other than domestic of the insured”. garnishee, arguing plaintiff, insurer, riding “engaged truck, in Houck’s while home depended part upon employment” of Houck, holdings compensation in which cases courts injured availing him- while workman, ruled have transportation employer, his furnished self of injury arose out of his in an accident which received employment. plaintiff, course (1) facts that other stressed the hand, day’s (2) injury work; the close of his befell him after by any liberty go he means that he home was at paid spent (3) in preferred; not for the time he was (4) perform traveling he no duties to home; and transported. being Accord- while he was for Houck merely collecting part pay his ing he was him, to injured. home] [his court, he was ride when exclusionary policy’s not holding did clause that the provisions as plaintiff, such declared bar the employment” “arising of his of and in the course out compensation laws liberal receive workmen’s found that kind are remedial measures of because construction “engaged ambiguous such terms but that in nature, employment” exclusionary in the occur clauses policies liability strictly insurance are construed against support holding the insured. In of its it cited B. & H. Passmore M. & R. Co. v. New Amsterdam Casualty supra. “engaged Co., It held that in the employment” plain means active in work which the employed paid perform. tiff was to We now turn to the Passmore decision. As we Judge have stated, it was written Circuit L. Orie Phillips. Judge Circuit Huxman concurred and Cir- Judge cuit Bratton dissented. The facts Pass- substantially more case were similar to those in the just case In reviewed. the Passmore the em- ployee, riding whose name was Little, lost his life while day’s employer’s home at the of his close work in his employer, corporation truck. The a B. H. entitled & engaged roofing Passmore M. & R. Co., was in the shop City. business and had a in Oklahoma The nature required 'go Passmore’s work Little to various places covering roofing. structures with On the day fatality place of the Little had worked at nine shop. frequently miles from Passmore’s Little drove places his own automobile to and from the where he performed work, but the trial court found that, by implication, transportation. he was entitled to He hourly paid upon pay an basis and received no going returning place while or from of his work. Upon the death of Little the latter’s widow instituted against damages upon charges action Passmore for negligence. thereupon Passmore demanded that Casualty Company, New Amsterdam which had issued liability policy insurance, defend the action. provision A follows: “This does * * * apply: bodily injury to 'or death of employee of the insured while business, employment other than The domestic the insured,”. liability presently insurer denied instituted 'a suit declaratory judgment rights for a as to the and duties parties. judge The trial sustained insurer’s position and held that under the exclusion clause Little employee engaged at the fatality. Upon appeal, time of the the Circuit Court Appeals ruling, at first affirmed the trial court’s upon rehearing Judge but later, Bratton dis- senting, withdrew its decision and reversed the trial judge. opinion spoke Its final as “a case border- reversing employed line case”. In itself, it the reason- ing adopted by Scheper which was later v. Francis preceding paragraph. which we reviewed upon rehearing, by Judge Phillips, decision written policy “engaged held that the words of the in the business” mean that individual whom the insurance company wishes to exclude must have been “active” in the business the insured at the time of the acci- passenger dent, and that Little’s situation as a not did opinion compensa- suffice. The stated that workmen’s legislation tion receives liberal construction, whereas policies of insurance are construed favor of the insured. It commented the fact that courts, seeking meaning of contracts, endeavor to discern parties, the real interest their is, mutual understanding, but statutes are since devoid of understanding, the element of mutual their construc- presents only problem giving tion effect to the legislature. intention of the The court did ex- pressly state the terms “while * * * “arising business of the insured” out employment” the course of his do not mean group appears same, but it is clear that since the one in a of insurance and the other in a statute, consequences The to their use. attached different support holding

opinion Little was of its cited, engaged time Passmore at the in the business of casualty, Co., 286 v. Travelers Insurance of the Green 150 Kan Behner, 876, NE2d Elliott v. 620, NY 36 358, v. Mutual Auto Ins. Co. Farm 852, 96 P2d State In the Minn 294 NW 413. Green Skluzacek, berry picker injured was a whose workman the by express employment, nor neither words of contract transportation. by implication, him to At the entitled berry injury way he on his to was the time of his employer’s truck. The decision said: fields in his * * “ * transportation In case the was such May’s employment. part gratuity a of and not a * * * employer gives employee the Where the merely the accommodation, as a matter a ride ride part employ- gratuity the and not is a ’’ ment. policy ex- issued the defendant of insurance The “any employee liability of the while insured cluded engaged of the insured.” The decision business against judgment of the trial court affirmed court dissented. In members insurer. Two Elliott, one Albert whose death while Behner, v. Elliott riding the defendant in a truck driven was the employee subject Mont- matter of the ease, County gomery of the truck. was the owner The which transporting county employees from truck used for duty place. place men were under no to ride The privilege themselves of the availed in it and when day’s conveyed being of the home in it at close judge they paid no fare. The trial found that work, implied conveyance in truck was an condition of employment, Supreme but the Court the contract of upon The action that issue. which led took no sides against the not filed to the decision under review was county county against employee who hut fatality de The occurred when drove the truck. driving home at the termination fendant was the truck judgment day’s After had been recovered work. satisfy it, and the defendant failed writ garnishment Employers Casualty was levied Company had issued a of insurance to county. The named the “assured” not ** * only county “any person but also other * * * using provided while such automobile permission such use is of the named Assured”. exemption phrase, clause contained this “while occupation business or of the Assured”. against judgment garnishee. The trial court entered dissenting, appellate With two members court judgment. affirmed the The fact that the defendant negligence employer action was not the but the liability driver of the truck seems to indicate that the against which invoked the insurer was under public, distinguished employer, as from the clauses policy. trip The decision said: “The home in part employment.” the truck was no his In State Farm Ins. Sklusacek, Mutual Auto Co. v. one of the was a farmer defendants, Skluzacek, who had hired year boy, the other a 16 defendant, Sibell, old boys Upon an some other weed onion field. an when occasion Skluzacek was about to drive his truck quarter from home to onion a field, his of a mile boys jumped get on the distant, truck to a ride. boys After truck had reached the field and the alighted, bumped the truck into Sibell. The pro had issued of insurance which denied bodily injury employe “for tection in sured while in the business of the assured.” judge The trial found “ riding ‘that on said truck’ Sibell ‘was gratuitous permissive, a mere favor, and not employer’s in furtherance of’ the nor did ‘business, riding by implication part become the em- ployment his employe and that contract,’ ‘said owed employer except no duties the fieldwork the onion field.’ received ‘said It concluded that when Sibell injuries, employe he en- ” gaged in the business of the assured.’ under The decision review was based a suit for declaratory judgment the insurer had filed. The decree lower court was affirmed.

It will be observed that in the Farm Green and injured persons Mutual cases, the were not entitled transportation part to ployment. as a of their contracts em-

In the State Farm Mutual in- case, the jured boy merely helped himself ato ride. In the employer. Elliott the defendant was not the We return to the Passmore now decision. We have taken note of the rules of construction which it em- ployed decisions the three which it cited support. opinion declined hold that term * * * engaged “while the business of the in- meaning “arising sured” has the same out of and ’’ employment. expressing in the course of In itself, the court said: particular “No under certain doubt, situations employee there would be no doubt that the either engaged or was was the business his em-

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

was not either Marshall accident, or Timmons at the time of the riding pas- paying but was as a truck ‘fare senger.’ beyond question The evidence shows transported he was from work as an incident employment, of his from whether was deducted 3% wages require- his this on account or because of the unemployment paid. ment that insurance be Such transportation part was a of his of em- contract ployment question and can be no ; there under enjoyed South he the law of Carolina the status employee engaged employment of an in the at the death. time of the accident which his resulted in * * * by said As Chief Justice Baker of the Supreme of Court South Carolina the Ward just ‘Appellant 387]: [188 cited S.C. S.E. 233, 198 jurisdictions has holding place numerous cited cases from other going returning to and from the employment, part if it is of the contract employee by employer that transportation and from be furnished transportation or the means during work, continues transportation, go but need the the we no farther than Covington decisions this court. The case of v. A. R. R. C. L. Co., 194, 158 S.C. 438, 155 S.E. approval Railway cites with case Sanders v. Company, 50, 97 S.C. 81 S.E. 283, and holds that employee returning by an from his work means of transportation purpose by furnished him for that engaged discharge is still in the employer employment. the duties of While these cases brought Employer’s were under Federal Li- ability seq., § principle 45Act U.S.C.A. 51 et applicable.’ is and is here the same, Casualty Surety “See also Johnson v. Aetna & 104 5 F.2d Co., 22; Cir. State Farm Mutual Ins. Brooks, Automobile Co. v. 8 Cir., F.2d 807, 136 persons being carried home where from work in a employer employees motor vehicle were held employed in the for business meaning just such within the an exclusion clause contrary is here involved. To the B. & is H. 298 Casualty M. E. Co. Amsterdam

Passmore & v. New impressed F.2d are not 536. We Co., Cir., argument to be of what is said that, because in- courts towards of South Carolina the attitude person policies, to of is South Carolina surance discharge employee ‘engaged be held purposes of the of his the duties Workmen’s employment’ Compensation §7035-1 Act, Code employee seq., an insur- such an where et not but of in There no decision ance is involved. to that effect; Carolina courts the South every why con- sort there is reason of this matters be avoided. It should in the law should fusion public li- these furthermore, overlooked, be express purpose ability policies of are drawn with injuries excluding com- covered workmen’s provisions pensation One of the laws. any obligation question ‘for excludes which any * * * may liable be held under work- insured men’s ” compensation law.’ by Judge Mutual written decision, The Lumber Passmore which came from decision, Parker opposite Phillips, Judge reached conclusions to each reading appear Upon two first decisions other. Phillips employed Judge same rules. have not to largely the familiar with rules that himself concerned writings. govern of He held the construction being legislation, compensation remedial in nature, liberally construed in favor of the workman be should policies exclusionary clauses of insurance against Judge strictly the insurer. construed be should govern with the concerned rules that also Parker was approached writings, but of construc- construction angle. seemingly He took a different from tion purpose exclusionary polestar a belief that coverage injury liability to for limit “to clauses liability general public and to exclude members to employees the insured.” Thus he tried to dis- purposes employers cern the actual obtain which problem insurance of that kind and the which Having objectives view face. taken that of the Judge proceeded practical exclusion Parker in a clause, whether a workman, manner determine who rides conveyance employer provided a home in aas part employment, the contract of was still work- “engaged employer man in the business” of the while way proceeded on his home. said that he We just inquiry practical way, in a mentioned for he spoke necessity of the constant that courts face of not losing sight relationship “of the substance attempting apply Judge rule of thumb distinctions.” Phillips also saw that hard rather facts, than defini- frequently tions, settle issues of the kind that the two presented, particular eases for he said: certain “Under employee situations there would no be doubt that the either was or 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 statutory are not rank. guides They experience generally which are has shown right may ignored lead to the result but be when the record furnished the court with better indices to party’s Judge intentions. It seems clear general purposes Parker believed that the for which employer protection an obtains insurance constitutes superior guide meaning policies. to the Al- though underlay the issue which the two decisions, expressed legal when takes terms, the form in which yet employer decisions cast two it, who faces problem procuring protection against of for himself potential damage may actions which be instituted employees protection against other his and suits which public may very likely of the file, members would express problem Possibly way. an a different regards relationship employees, employer his his with they actively running shop in the a machine whether are daily conveyance or in a which he owns and which he very to and from as different from work, takes them public. may relationship He feel his common are bus no men their status is that when the they they from that which hold are different when plant provided parts he for their of his which has other purposes pro- and for the additional convenience relationships stimulating produc- moting better nothing machinery plants except the Pew contain tion. employee keeps production, that an and it rare day. Many grindstone for the entire his nose drinking plants as lavatories, facilities such include parking assembly lots and halls. rooms, lunch fountains, Bybee, 790, v. 186 P2d arose out Or Kowcum employee parking injury suffered of an which employer of both the lot which safely may maintained for his workmen. It defendant just kind listed are be assumed that facilities general purpose same to serve the vehicles intended Anything transportation of the workmen. for the plant better workmen induces attracts to superior gives put employer efforts forth them to wages pays. greater for the which he In return view procuring protection problem from lia- tort employer might bility, to the occur that some never stepped that when the workman would hold over court factory parking into a door lot the threshold plant. company’s he had left the bus, into the or might employer that his still believe workmen were employees remained within his domain while regarded things doing which he as bene- and were production. superior Reflections kind ficial may prompted Judge have Parker to his belief purpose “The of the exclusion clause is to limit cover- age liability injury general to members of the public liability employees and to exclude of the in- sured.” The most task difficult is to ascertain point changes employee at which the individual from an public. Judge Phillips into a member of the common employee believed that unless the active in his work when the accident occurred he was not in his and work was, therefore, member of the common public. interpretation, Under his the exclusion clause employee pro- demanded should be actively participating duction line in the work. Ac- cordingly, way when he was seated the bus on his “engaged” home, he was not in his work but was a public. Judge member of the common Parker held that under exclusion clause the workman had not public (1) transporta- reverted to the common when provided by tion employer back to his home was employment, anas incident of the (2) contract of and injury was received under circumstances for which compensation an award of workmen’s would be ordered compensation if the workmen’s applicable; law were put provisions for, as the decision it, “One policy question any obligation excludes ‘for * * * maybe any insured held liable under work- ” compensation foregoing men’s law.’ completes The comparison reasoning. our of the two lines of Lamm v. plain- Silver Falls Co., Timber which the tiff believes indicates there is a difference meaning “injury arising between the terms, out of and employment” “engaged in the course of employment”, made no effort indicate the manner phrase interpreted. which the latter should be It of a not concerned with exclusion clause

of insurance. Mutual are Passmore Lumber Francis, only of the decisions which the of counsel three briefs reasoning but our in them attention, have called to typical employ. all of of that which the decisions In to the Francis Passmore decisions, addition [with 150 Kan 96 P2d two Behmer, 852, Elliott v. dissenting] employee, justices an who, held that at the day’s given gratuitous of his work is termination transportation is not in his home, conveyance. Taking in the home-bound seated while joining opposite and with Lumber Mutual the view the Casualty & Surety Co., are v. Aetna decision Johnson Farm 104 Fed2d Mutual Automobile Cir, 22; 5 State 283; 167 Fed2d Braxton, Cir, Ins. v. West Co. F. 4Co., Cir, v. States & 158 Fed2d 20. cott United C. Casualty Surety supra, Co., Aetna In v. & Johnson operated employer, Frank Green, one a small the saw- 40 miles from Carolina, mill in South the town in Georgia he his workmen lived. Each Mon- where day morning mill when went to his he took Green with following hands, his and on the him in his truck sawmill Saturday brought he returned home he when them Upon him in the truck. the occasion re- with which the in the decision under review truck collided sulted resulting in the death of one óf the another, work- injury another. Green had men and plaintiff protected insurance issued arising operation damage claims out of the him from but which contained exclusion clause truck, of the inapplicable bodily injury rendering “to any employee of the insured while en- or to death of gaged of the insured.” "Whenactions business against Green, threatened instituted were affirming declaratory a suit In the decree for a decree. plaintiff was District which held that Court, Appeals policy, not liable under Court of Circuit said: “* * * transportation to the the and from expressly hiring

mill hands, was not a term the years, but it had been afforded for several present was if understood when that could ride judge war the truck started. We think the was concluding transportation ranted in an from the homes that was implied employment. term of the The distance the men their work was so great transportation must have been considered employer employee. both The ride was employee mere convenience of after his forwarding work done, but was for employer’s necessarily provided work in that was get very employees wages these for the moderate paid forty carry them. No one would doubt them Monday forwarding miles to on work enterprise, employer sawmill or would think the discharged obligations if he had left them forty Saturday. in the woods miles from home on employees riding It has been held often free employer’s to and from their work in the vehicle employees passengers, to continue be and are not Ellington v. Dam Beaver Lumber Co., 53, 98 Ga. Railey v. 21; 19 S.E. Garbutt & 112 Co., 288, Ga. 360; 37 S.E. Roland v. Tift, 131 Ga. 683, 63 S.E. 20 133, L.R.A., N.S., Dwan v. 354; Great Eastern App. Co., Lumber 15 108, Ga. 82 S.E. Great 666; Southern Lumber v.Co. Hamilton, Miss. * * 787; 101 So; ‘‘ injured and Since Johnson Radford were when operation employees the of the truck still of policy clearly protect Green, Frank the does not provides: for under Green, Exclusions it ‘This * ° * apply (e) bodily injury not does to any employee or to death of the insured while * * ° engaged in the business of the insured or any obligation may for which the insured be compensation law.’

held liable under workmen’s Georgia, employment contract Both in where the where work was and South was made Carolina the injury there is one of them is occurred, and the to be done a where compensation law, workmen’s holding applicable our Johnson was killed under injured yet employees in while the and Radford course employment; but if a common of their law liability can be the still terms elected, apply.” does completes foregoing our the review of au- cases of taken In the which we have notice,

thorities. injury conveyance the sustained was was while the being thoroughfare. upon public

operated a In those employer’s transportation in the vehicle was not cases whereby practical employee only the method could place employment, go and from Casualty Surety exception v. Aetna & Co., Johnson employees prac- supra. at no In the case bar, whereby they means could travel to and from tical except place the busses which their plaintiff provided. in the instant Moreover, private traveled was road route which was which employer under the exclusive control and. lay rough rugged land, travel due dangerous. Although in the road was cases ordinary private were reviewed vehicles above motor the ease before trucks, or us automobiles conveyance bus used exclu- transporting sively purpose for the its workmen. analysis B. H. of & Passmore M. & R. Our Co. Casualty supra, Co., Amsterdam Lumber v. New supra, Casualty v. Stukes, Co. Insurance has Mutual reasoning employed persuaded in the latter. us to Judge Phillips pointed recognize, out, in We policies, especially clauses, their exclusion must surance against since strictly that, insurer and construed be legislation remedial compensation workmen’s liberally in favor construed must be character, workingman. done, all that has been when But policies before as one such the fact remains protection grant employers for no to us are intended Accordingly, employees. injuries the con- to their employee point trolling lose at does issue is: what general identity in the become absorbed such and his as employee public. his role as an he has cast off Until general merged public, and become against mishaps protection employer no affords may befall him. which problem than in this case to decide

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

to disclose “arising employment” out of and in the practical employment.” The of his affairs of course gain according nothing belief, our would life, consequence should if a court undertake discover groups

a difference in the connotation of these two of words. We do not believe that the Passmore de- actually cision holds that the two terms differ in mean- ing, determining but indicates that courts, whether “engaged employment”, a workman was in his are they more inquire inclined to answer “no” than when engaged whether employ- he was “in the course of his ’’ judicial ment. The difference is one of attitude rather phraseology. than one of difference in The difference origin has its fact that in the one case a con- subject tract of insurance is the of attention and in legislation. the other an item of remedial We can see respects merit in the distinction. In all other we em- opinion. brace the Lumber Mutual It will be recalled that the Passmore decision said: particular “Under certain situations there would be employee no doubt that either was or employer.” Possibly in the business of his words foresaw a situation those kind which is us. It obvious before that the facts in the Passmore materially case in the at one bar are different. exemption The clauses are but similar, otherwise the cases are different. plaintiff

It seems clear that the could not have providing carried on its business without a means whereby place the workmen could reach the of their day at labors and the close of the return to their dwell ings. Transportation for the workmen was vital operation plaintiff’s constructing and, lieu of upon operate a road which its workmen could their incumbent cars, own it was to haul carriage men forth. back and Provision for the plaintiff’s opera the men was no less essential to the log logs tions trucks which than hauled the from as much crummies were market. the woods to log plaintiff’s plant integral part as the trucks an log that trans- road. We are satisfied truck if not an portation incidental, men for the employment between express, of the contract term employees. plaintiff and its morning men entered the busses When day’s termination of the them at the and returned they of the terms of their con- so because did labors, employment. busses, rode Unless tract said, we have be cut. As busses timber would no part plant. practical purposes, a for all were, production logs. They played their role in the At accident, men, the unfortunate accord- the time of ing in their our were belief, to plaintiff’s employees; (1) they (2) were the because plaintiff’s plant; they they (3) were still were plaintiff’s (4) doing control; still under were plaintiff’s something opera- which was essential to the presence (5) was, their the bus for all tions; purposes, practical a condition of their contract of employment. assignments merit of error

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

The decree Costs affirmed. not be will allowed. and disbursements Beheaeing On In Banc Bay, E. of Coos and Howard K. Walsh,

William Bailey, Maguire, Shields, Morrison & Beebe, petition. for the Portland,

Black &Kendall, of Portland, McKeown S New- Bay, attorneys respondent. house, of Coos for J. TOOZE, plaintiff, Logging Company I-L has filed a

petition rehearing omitting parts, for formal which, reads as follows:

‘‘ opinion complete 1. The herein is and radical departure from and abandonment of the well-estab- by applied lished this rules construction heretofore policies. construction of Court insurance by placed upon “2. The construction the Court ambiguous language the issued insurance by respondent prohibited the statutes of this State. apply overlooked and failed “3. The Court high standing have rule where courts

placed a construction an insurance ad- to that contended the insurer and the verse insurer continues to issue the insurer policy unchanged, adopted must be deemed have such policy. part adverse construction as apply “4. Court overlooked and failed to The rule that where courts have differed as own meaning language policy, in an insurance ambiguity fact and exists as a matter of of law ambiguity and must be resolved favor such insured. Though rejected (a) the reason-

“5. the Court ing Judge in Lumber Mutual Cas. Parker Co. of upon it based the rea- v. insofar as was Stakes authority compensa- soning of workmen’s applied step nevertheless, Court, tion cases; reasoning reasoning by step identical of such cases. application

(b) opinion herein and reasoning reversed the rule of such a construction to as favorable insured is entitled in- and applies permit conscience will good law, in the heretofore unheard rule, stead insured against construction strict in favor of the construction liberal extremely insurer. ‘‘ in fact and in law in hold- erred 6. The' Court had control over employees ing appellant affirmatively record shows in the bus. The riding them in the had no control over sense that appellant control has the his em- right that an employer ployees. erroneous decision herein

“7. The effect of the is that: Though was

“(a) appellant endeavoring full insurance coverage, actually secure not either under protected respondent’s policy or Lloyd’s policy. Many Oregon (and em-

“(b) employers in similar circumstances are ployees) deprived coverage insurance whatsoever because any herein the ‘standard’ under the opinion is not by respondent applicable, issued employer’s liability ‘standard’ issued policies afford no by clearly coverage.” Lloyd’s also filed extensive brief in sup- Plaintiff has a careful review of that However, of its petition. port point has failed to disclose important brief counsel and fully carefully argued case court original hearing. considered the facts in the be- restating We refrain from original set forth our fully opinion are cause 13,1954. down July was handed assignments attention to several Before giving rehearing, we wish error set forth petition is the effect claims take what note and (b) in subdivisions (a) forth as set decision, our 7 thereof. of paragraph

310

We have held, course, that under the facts protected this under defend- indemnity ant’s insurance. toAs whether protected Lloyd’s policy it was under is im- no portance particular litigation. rejected in this Plaintiff compensation the contribution and features of our Compensation right Workmen’s had a Act, as it employes, sought pro- do. In its relations it protection tection elsewhere. The it sort of received problem; is its own one of the it as- hazards rejected bearing sumed when the Act. It has no interpretation given whatever be should provisions public liability policy to the issued plan- said defendant; what is with reference to applies employers similarly tiff to all other situated. might pointed employers out It be that if these well coverage are to secure desire unable from Lloyd’s indemnity company, or some other the doors always Compensation Act remain the Workmen’s open to them. us reveals that

Moreover, the record before we need alleged give plight no concern over the ourselves actually plaintiff. that “it statement was not :;i * * * * * Lloyd’s protected policy” under practical facts, does not accord with the viewed from quote plaintiff’s opening standpoint. We from brief commencing page appeal on on court, this following: thereof, July 1947, 4, 1947,

“Between November 21, against appellant actions were commenced twelve on account injuries to and deaths of em- (Defts. ployees Resp. Workmen’s the crash Exs. 4-15; who were rejected appellant 3-5). Ab. Since (Ab. 74), Compensation Tr. 5, 15, Law by appellant to its attor- was referred the matter Bailey (Tr. neys, Maguire, Shields, Morrison & appellant 128). September, Ill tendered of actions to certain at defense said underwriters (Tr. 142), Lloyd’s, em- had issued an London who (Deft. 3). liability policy appellant ployer’s to Ex. question Lloyd’s A raised as to whether the was policy (Tr. 151-2), potential and the total covered liability that potential coverage than from was more Lloyd’s Messrs. and so Senn

source, counsel, attorneys appeared upon appellant’s Becken, and Spark- Sidney pleadings at the and trial of (Tr. 4-15). Defts. Exs. 140, 147, 151-2; man case Lloyd’s question policy Because of the of whether appellant’s po- counsel concern of over covered, the that loss, tential uninsured Under- fact appellant’s counsel reached counsel had writers’ (Tr. concerning respondent’s liability opinion an 145-6, Underwriters 000.00, whereby 151-2) agreement made was up appellant $100,- would loan to only repayable out recovered of funds from against dispose appellant respondent, to the cases 157). (Tr. Execution of the formal instru- 146-8, (PI. P) postponed until all had Ex. was ment been cases amount loan so that the exact

settled, (Tr. 148-9). incorporated The therein could be actual disposition agreement made before was against appellant been effected cases 148,157). (Tr. (Tr. 16) judg- that “It Ab. 50; is admitted (Deft. Sparkman on verdict Case ment payment 7) had been satisfied Ex. by uncontradicted and it was established $1,187.75; and undisputed evidence that the balance of the compromised and settled a total were cases $114,500.00 J, K, (Tr. I, Exs. 42-45,112,155; E, Gr,H, PI. prejudice N). cases were dismissed All 4-15).” (Italics ours.) (Ab. Exs. 17; Deft. liability Lloyd’s limit of was Under on each disaster. $5,000, with a deductible $100,000 COMPENSA- “WOBKMEN’S is entitled: SELP-INSUBEBS) (EXCESS POLICY.” TION appears Lloyd’s indemnify plain- Thus did policy. Manifestly, tiff under the terms of its dealings Lloyd’s “loan” feature of the between pure simply more or a less fiction. It was plaintiff, a contrivance enable in its own name, to against maintain this action defendant. Plaintiff has nothing orwin lose our decision. It ais nominal party only. party (not The real in interest in the sense plaintiff here) Lloyd’s, that it could or should be the plaintiff, and not It, London. must suffer the ef- significant Lloyd’s of our fects decision. It is willing pay indemnity policy. under $100,000 money; That is a substantial sum of not a nuisance payment. knowledge It is matter common Lloyd’s being philanthropic lacks much of institu- shouldering tion. It is its motives in obvious liabil- ity guided by spirt in this a case were of benevo- a matter Whether, lence. as of law, was liable under policy not before for its is us but its decision; actions, speak than louder indicate its words, own belief policy liability that under its attached. It is, course, procured plain policy and intended its as a rejected provisions for the of the substitute Work- Compensation Act. men’s reading the other a mere of defendant’s hand,

On clearly procured reveal that it will entirely purpose. for an different is, issued liability public policy, indicates, as title its type are standard for that of insurance. Its terms indemnify against insured for dam- aim to claims is public generally, ages by of the as distin- members arising damages employes guished for from claims relationship. speaking employment In of the out relationship, employment do not use term we “employment” nor did we so use sense, in its broadest opinion. it in contrary, onr former On the we nse it in its well-established, restricted sense,—in the sense arising that it Employer’s is used in cases under an Liability Compensation Act, under a Workmen’s Act, policies under insurance such as we have here, and in involving situations respondeat the doctrine of su- perior. significant It is most that the exclusion clause policy expressly liability defendant’s excludes for by employes might claims for which the insured be held any compensation liable “under workmen’s law”. give specific grounds We now attention to the for rehearing assigned by plaintiff. preface as We by again quoting our discussion the exclusion clause policy: of defendant’s “(a) bodily injury to or sickness, or disease any employee death of of the Insured while en- gaged employment Insured, other than employee, (b) obligation a domestic or any company

which the Insured or may as his insurer a/ny compensa- be held under liable workmen’s (Italics ours.) tion law.” plaintiff’s phrase It is contention that the “while in of the Insured” am biguous. argues ambiguity It that such exists a matter of fact certain law because accord courts, ing plaintiff, meaning have differed as to the equivalent language policies same or in insurance sim support ilar to that issued defendant in case. In this of that it case of contention cities the Purcell v. Wash. Co., 475, 486, Ins. 146 Or 30 P2d 742, Nat. Fid. opinion

quotes Mr. from the Justice Rossman follows:

“Although pol- the defendant contends that the any ambiguity, icy it admits that free from clauses under consideration have to the one received similar support ‘tending respondent’s constructions by Ap- views’ the United States Circuit Court peals by Supreme Third District, the the Washing- Arkansas, Courts of Colorado, Texas and juris- reviewing ton. Before the of those decisions add that dictions, we the defendant contends that weight authority supports the ant’s view. Defend- jurisdictions foregoing admission placed upon policies have of the character written position it constructions adverse to its is deserv- ing passing policy of more than notice. before The September 1926, doubt, us was no its its 29, and, sold lawyers phraseology product in is the skilled employ familiar decision of the who were with the Arkansas, courts. The and Federal de- Colorado reference, makes cisions to which defendant review, in a moment which we shall were long published reports to before this was sold plaintiff. The Texas decision announced (Texas Surety Co. Diercks but Southern v. progenitor Appeals), 250 755, the Civil S.W. defendant, case decided in this cited Thus, 1923. when wrote defendant high it knew the construction courts of standing phraseology placed which it are decisions those selected. there conflict If mentioning, ambiguity now then an which we are exists, and, aforementioned, under the rules given must be doubt. benefit of (Italics ours.) light foregoing of the must be read .facts specific- existing and, case and circumstances provisions light particular of the ally, ap- In that it there involved. case contract insurance provision particular insurance peared that the by quite had been construed policy under consideration In the instant last resort. courts of of state a number language appears of the ex- however, being lan- similar considered, or now clause clusion

315 guage, by only prior had been construed four courts to policy; the issuance of (1) defendant’s viz., the U. S. App., May, Cir. 5th Ct. in Cir., 1939: Johnson v. Casualty Surety (unanimous Aetna & Co., 104 F2d 22 decision); (2) by Supreme court of in Kansas, (Casualty December, 1939: Elliott v. Behner Co. of Garnishee), Dallas, Texas, 150 Kan 876, 96 P2d 852 (two judges dissenting); (3) by the U. S. Ct. Cir. App., July, 8th in Cir., 1943: State Farm Mut. Auto (unanimous mobile Brooks, Ins. Co. v. 136 F2d 807 de cision) (4) by App., ; and the U. S. Cir. 10th Ct. January, Roofing inCir., 1945: H. Passmore Metal B. & Co., Inc. v. New Co., Amsterdam Cas. 147 F2d 536 (three judges participating, dissenting). one In the first case decided, i.e., the Johnson court con case, the language question strued similar to that in con here trary plaintiff’s in this case, contentions as opinion. we construed it in former case, our The third Brooks i.e., case, followed the same rule announced citing in case, Johnson Johnson ease as an authority position. for its In the ease, Passmore point in of time followed both the Johnson and Brooks seemingly the court at a cases, arrived conclusion keeping litigation. plaintiff’s claim in this with body opinion, court, of its noted decision in attempted apparently case and the Brooks distin although guish on the its statement of the facts, appears to have been in error. In in that case facts boys being transported were to their case, Brooks and not to another occurred, the accident home when Judge perform place additional duties, work body opinion Phillips of its Also, stated. ignored holding the court Passmore passing, note we However, case. the Johnson 316 appended decision,

interest note to the Passmore reading page F2d, found on 539 of 147 as follows: Surety Casualty v. Aetna & 5Co., “Johnson Casualty on Cir., 22, 24, F2d relied Com- pany, distinguishable from the instant case. ‘any coverage policy from the There, obligation excluded may held the insured be liable ’ compensation The law. court under held furnished workmen’s conveyance riding employee, in a that the while by employer place from the of work injured distant, in the to his home miles was employment, and, he therefore, course of his entitled was Compen- under the Workmen's benefits from the accident was excluded sation Law policy. question coverage is, Here, of the engaged in the at the the accident Little time of employer?” of his business by glance, At Elliott decision the Kansas first support the claims of court would seem given the that should be relative to construction policy provision are con- with which we defendant’s analysis opinion in Yet, a close cerned. question is to whether it case raises a serious as against plaintiff’s position. authority We shall for or significant point features of that later out some rather opinion. questionable highly divers- it is

However, ity opinion mentioned estab- four cases shown employed language ambiguity existing in the lished an policy the mean- or within a matter of fact law by De- ing Mr. Justice Rossman. as stated the rule by last resort since courts of rendered several cisions may the effect have issued instant meaning ambiguity of the establishing within such conflicting con- done, all is said Yet, rule. when only by evidence am- is of courts a number clusions biguity. necessarily It is not conclusive. The rule is Appleman, stated in 13 Insurance Law Practice, § 105, 7404, as follows: “ # * very The fact that a number courts conflicting reached

have pretation conclusions as the inter provision frequently of a certain is con ambiguity. Conversely, sidered evidence of if the meaning by judicial terms decision, have a clear scarcely it can be said that are am biguous, bring so as to into effect the rule of strict ” construction. The rule announced Mr. Justice is a Rossman ordinarily applied necessary sound rule and when under circumstances such as existed in the Purcell case. remains, fact that it is nevertheless, but one of many secondary for the rules construction of in- surance contracts that have been established court construction, decisions, and, like most other rules of depends application par- for its and effect the ticular facts before court. the Stewart v. Continental 141 Co., Cas. 213, Wash P 49 ALR 1084, 960, and note. pri

However, it be in must borne mind that the mary governing and rule for the construction of insur ance as of all other contracts, is to ascertain contracts, parties. applying and declare intention of the In the this rule, the contract must a and, be considered as whole, may in some had to instances, resort be extrinsic cir attending agreement. cumstances execution of the the secondary All other of construction are rules and are designed purpose aiding application of primary Appleman, of the rule. In 13 Insurance Law and it said: Practice, 29, §7385, is polar

“It has been stated that the star of con- of an insurance contract struction is the intention parties, duty pos- and is the of a if court, regard- apply to and sible, intention, ascertain party to of whether the result is favorable one less or applying principles of another, construction previously examined. All other rules of construc- this.” tion are subservient to Appleman, Practice, 11, In 13 Insurance and Law § it is further stated: insurance, “It has that a of been stated contract every

being parties, should between the have law being stipulation presumed It construed written. every accomplish to condition intended purpose, idle some it is not to be considered that provisions have some to Each inserted. word deemed were meaning, to none should be assumed superfluous. portions be should be All * * construing *. it. considered court will therefore, “It stated, has been provisions its and all of look to the entire instrument meaning, aas and will construe it ascertain its ** * entirety. con- The entire whole or its subject insur- of the contract of text and matter meaning determining be will considered ance expressions. application specific words and Nor am- be considered will insurance phrase, merely biguous isolated because a word or susceptible more one context, is than from its susceptible meaning, it is because, context, or in its meaning. and one unreasonable one reasonable “ will, rather, take into consideration The courts object purpose apparent insurance, or along may making construction, consider, ana subject policy, matter context with the parties, cir- insurance, the situation making surrounding con- cumstances tract.” (Italics ours.) apply- rule of construction no is court-made There binding upon to the is us ing that contracts to insurance coming re- every are before us we case extent quired eyes particular to close our to the factual situa- reasoning powers tion involved, to abandon our own ignore precedents by prior and established decisions blindly path of this and to court, follow a some court foreign jurisdiction may adopt of a have followed, or language interpretation narrow strained employed simply in the contract such an because inter- pretation might be favorable insured. may purposes

For the this it be conceded phrase that the “while

the Insured”, as used in am- clause, the exclusion is biguous, upon specify the sense are called we meaning. opinion with distinctness its In our former judgment we endeavored to make it in our clear that language employed in defendant’s has meaning phrase “arising same as the out and in the employment”, course of used in our Workmen’s Compensation Act. That conclusion was after reached thoughtful deliberately consideration stated. altering position We find no reason for our in that respect. ambiguity from our concession of However, necessarily mentioned, the sense not does follow ambiguous language under the rule that that, in an ordinarily strictly insurance contract should be con- against libérally insurer strued in favor of the adopt urged we are bound to insured, construction plaintiff: employe us that it means that the actually engaged performing particular must be paid perform. work he is The rule itself is specific statutory it does have a rule; court-made not applied particular is a basis. It rule when the application a case warrant its and when such facts application lead to a sound conclusion. will ORS support plaintiff in of its cited contention 42.260, statutory rule mentioned has a basis, that the does specifically apply general to insurance it is a contracts; given statute face that in which on its shows case application depends upon particular in- the facts provides: volved. That statute agreement the of an “When terms have been parties, intended in different that sense prevail, against party, sense is to either in which supposed he the other understood it. When dif- provision ferent of a are otherwise constructions equally proper, taken favor is to be construction party is in which most favorable to the whose provision made.” was de be as we do not wish to understood However, degree firmly-estab viating slightest from in construction lished rule in this state where the ambiguous language policy containing an insurance liberally provisions construed should involved, the be indicated, in as Nevertheless, favor the insured. light equally of other considered in the the rule must be particularly, construction, and, well-established rules of appli light primary rule above stated. Its of the all the conclusion under must lead a sound cation in issue. and circumstances facts policy plaintiff argues defendant’s had construed clause after certain courts issued present question unfavorably conten- to defendant’s policy might that the be considered that it well and tion, upon it. Plaintiff that construction was issued with states: Oregon policy law the well settled

“Under BEFORE cases decided be construed will policy not in accordance with written latter decisions of afterwards; those decided ambiguity merely existence demonstrate given benefit of be must the assured to him.” favorable most construction Substantially argument tbe was made tbe same original bearing. support In its claim tbat tbe word- ing tbe exclusion clause defendant’s o.f unfavorably been construed to its contention this prior case to the under consider- issuance again deci- cited, cites, then two ation, supra. Behner, sions : the and Elliott v. Passmore previously the Elliott stated that would discuss We we opinion, in former case. discussed it our True, we phase is the decision to but inasmuch as there one give now attention, we will which we did not detailed supply that omission. supra, upon which Behner,

The case of Elliott v. sequel v. to the case of Elliott relies, was case 146 Kan P2d 1116. In neither Behner, 73 827, directly Compensation involved Law Workmen’s entirely indirectly. dif- The that case were or facts pointed instant as we ferent from the facts opinion. out in our former policy in the Kansas of the exclusion clause

case read: “* ** any Bodily Injury em- to because of (except ployee household servants the Assured any engaged chauffeurs) busi- while other than * * (Italics occupation Assured or ness ours.) construing phrase “while

In to deter- occupation Assured”, or business very properly court the Kansas meant, what it mine to be it deemed what a consideration resorted provision in its state Workmen’s a somewhat similar refer- decisions Compensation and its own Act language erring used Kef thereto. ence P2d) (at : page of 96 856 clause, said exclusion “ something in this language like There Q.8. com- workmen’s m contract 44-501, 1935, pensation part, act. That section reads, in as fol- lows: “ any employment ‘If ap- to which this act _ plies, personal injury by arising accident out of and in employment the course of is caused to a * . workman injury “This court has held that an must ‘arise happen out of’ and employ- ‘in the course of’ the ment in compensation order for the workmen’s act apply. Empire See Rush v. Refining Oil & Co., 140 Kan. 198, 34 P2d 542, 543, and cases cited. There court this said: “ ‘Did plaintiff’s the accident which caused ”

injury employment? arise “out of his Even when authorizing other conditions exist, the award of compensation, it is essential that the accident which injury employee causes to the arise “out of” and * * * employment. “in the course of” his Both conditions exist. must Bevard v. Co., Coal Light Kan. 207, 156 P. 657; Haas v. & Power 109 Kan. Co., 197, 203, 198 P. 174. The terms are They separate things. not to be confused. mean employment simply “In the while course of” means progress. Refining inwas v. Cox 108 Co., 863, 195 19 A.L.R. Kan. P. 90. Those point place, words to the time, circumstances place. High under which the accident took State way Saylor, Ky. S.W.(2d) Commission v. 743, 68 Applying 26. these authorities to the accident which injury caused claimant’s this there is no saying difficulty in that the “in accident arose employment. enough. the em course his But that not is of” It is essential that it also arose “out of” * * ployment'. *’. enough injured person “It is not that the employee [sic] an of the assured for this clause to exempt also have garnishee liability, injury from must

happened injured while the man was en- gaged occupation or of the assured. the business engaged not so when Elliott the accident oc- was (Italics ours.) curred.” discussing Before of the case as noted, the law 855): (page Kansas court had stated argues employee that Elliott “Garnishee occupation engaged in the or the as- business county, he when was killed and sured, on this account account is, is liable under the on given The to his death. answer be de- upon pends vmder the and circum- whether facts he this case Elliott at time was hilled in stances of employee of the assured and was an * * occupation or assured. *. the business ing hours work truch was county saw 66 * “* * * fit. when it and # He no ^[*] for part thus In ^[*] could this & riding.” performing county. ride case employment. Elliott (Italics no service truch trip ours.) finished He or not home paid for the as he noth- eight in that it is clear that fatal facts case Under the employment, of” “arise out Elliott’s did not accident applied ordinarily construed and that term is as Compensation cases. is That, substance, Workmen’s It court said. based its ultimate con- the Kansas what particular upon it facts with which had to clusions grounded significant it its final But deal. quoted upon the discussion immedi- above decision respecting Compensa- ately preceding Workmen’s Act. tion authority that “an insurance com for its claim

As epxploy has a clause which pany continues unfavorably present contention construed been may have issued the considered bewell plain adopted it”, have or to it, construction Casualty Fidelity v. Lowen- Co. & cases: cites three tiff F stein, 97 17, 19; Prudential Ins. Co. v. Harris, 254 Ky Stanley SW2d 28, 70 949, 953-4; v. American Motor ist Co., Ins. 195 Md 180, A2d 4.1,

In the Lowenstein case the court said: company policy “The defendant issued the in * * by after it suit, *, was advised the decisions to which reference has been one which made, own contract, a construction inter- that, as preted states, the courts last resort several exempt the ity that an insurance as drawn would not it from liabil- * * * * * unwilling *. We are to concede

company may continue to issue policies terms, without modification their provisions after certain thereof have been construed highest courts character several ability, insist, and be heard to controversies be- respect insured itself and the with to such between policies, they subsequently issued that do not they judicially ad- fact cover risks which been (Italics judged ours.) were issued.” to cover before Maryland Stanley court said: In- case * * * “* * parties adopt an insur #. who apparently policy, has had nationwide ance judicially or six construed five and has been use judicial adopt construc it the states, tion uniform (Italics in other states.” has received ours.) Kentucky spoke in the Harris as follows court

case: * *

“# jpor twenty years this rule and more consistently applied, has been construction every this character issued insurance during knowl time has been with the the state by the edge so defined be their terms would companies not been have If the insurance courts. of no reason altogether are aware satisfied, we why incorporated explicit a more limitation could not have been * * policies. *. in the may logically it be said that contracts “So understanding by entered into with the have been both legal meaning parties that their is indicated. as merely age frequency It of a nor is not rule stability, application gives for error that is its perhaps gray not with error it has become less because years But, or smooth with use. when con- authority have made under the tracts been judicial construction, it consistent course should very compelling be a situation that would warrant adversely change rights affect ac- which would policy.” (Italics quired ours.) under that by the rule announced above courts is cer tainly manifestly inapplicable rule, a sound but it is to Prior this case. issuance de the situation directly by policy, construed it not been fendant’s language policy, any nor had the court. Neither judicial language, given con “uniform been similar six nor had states, five or there courts struction” judicial course of construction” re “a consistent been only contrary, specting at most two courts it. theOn favorably language plaintiff’s had construed the definitely other courts had two whereas contention; opposite is In such circumstances view. taken the apply contended the rule court would doubtful by plaintiff. do so. refuse to We opin previously in our former we held noted, As employ phrase “while ion policy, the same has used in defendant’s as ment,” “arising course and in the phrase out of meaning Compensation employment”, used Workmen’s again hold. so Acts. We injury general sus- rule,

It a well-settled going does not or from work a workman tained employment. arise out of and in the course of his How- exceptions general equally several ever, to that rule are exceptions firmly well settled. These were established by many many decisions courts of last resort including long our states, own, before defendant’s adopting plaintiff’s issued in this case, and, argument and the own authorities it cites, defendant’s may light and should be read in the thereof. employer may agree, expressly An either or im pliedly, relationship that the between himself and his employe during period “going shall continue job coming from” the actual site, to which case generally injury held that an accidental sustained by employe “going coming” while or the is one that employment”. “arises out of and the course of the particularly employer where, here, This is true as the transportation and from the a furnishes work as necessary part employment. of the contract of employer, may part arise a same situation when as pays an extra sum of the contract of the workman hire, transportation, money of of to cover the or cost where employer compensates employe period the for the the required going to or from the work. Each of time facts. no fixed decided its own There is case is record in all eases. The the instant decisive of rule transportation supports a conclusion that the fur case part employer expressly by amade of the nished necessary hire and was incident contract of the only transportation practical thereof. Such job getting to and from the of the workmen means Livingston Com., 468, Acc. 200 v. Or State Ind. site. Lamm v. 27; LJ Silver Falls 13 NACCA 684, 266 P2d P P P 91, 527, 375; 277 286 291 Co., 468, 133 Or Timber Ariz 256 P2d Kobe Comm., 326, 709; 75 v. Ind. Serrano P2d v. 215 Voehl 33, 736; 35 Cal2d Com., Acc. v. Ind. Indemnity America, North Ins. Co. 288 US 162, commencing 380, 77L ed 87 ALR and 676, 245, S Ct note page Maryland Co., at Gettlin v. Cas. 196 F2d 249.

It seem that a would axiomatic workman is en gaged doing át all he is his times while employer, something pursuant for the benefit “something” his contract hire. That does not neces sarily swinging opera mean the actual axe, donkey, handling tion of of the lumber on the activity performance green or for the chain, other may things. employed. It include other which one is job transportation site is and from neces When part sarily by employer as con furnished employment, to further busi here, tract of and, question employer, no but that there can be ness of their em are the duties workmen (or they ployment enter the bus from the moment provided transportation) the em other means of they discharged purpose ployer until are for that day’s work. It is immaterial therefrom at the end of transportation. from that the also benefit workmen it is this the facts and circumstances Under the workmen entered from the moment obvious that began, transportation their movements the bus and employer; control had no controlled were operation nor did have vehicle, over the exclusively right business it. That direct to employer. previous not decision is our It is manifest plight caught in a wrong find ourselves mow unless we decision, compels Passmore us to embrace gave to it though we consideration the careful even reject opinion original caused us our we wrote when rehearing petition a for holding The case. in that decision was cor- Passmore does contend rectly decided and that it is our harmonious with laws previous and decisions, but insists that court this and all other courts confronted like with cases this one caught adopt have been a vise which forces them to holding. the Passmore petition rehearing upon prem-

The a based is for anywhere provision ise that if a court has construed a policy favorably in an insurance to the insured, there- upon subsequently all other courts which construe a provision must similar follow it. latter becomes subsequent flock, bellwether and all courts They step. engage must in lock can follow no reason- ing process: reply, “Their’s not to make Their’s not why, to reason but Their’s to do die.” the rule which the asks to follow, Under us previous Judge our would be correct if decision Parker pronounced decision in Lumber Mutual Casu- alty day v. Stukes, F2d or so Ins. Co. before plaintiff, issued its the defendant since but, previous must reverse our so, he did not do we de- willy-nilly, the decision written follow, cision Judge Phillips. Thus, we are asked to decide this ease following plaintiff’s But a timetable basis. own clearly argument, decision is the Passmore erroneous adopt interpretation placed upon it did not because question prior phrase in two cases: Johnson v. Surety (the case), Casualty supra; Co. first & Aetna Mut. Automobile Co. v. Brooks, Farm Ins. and State supra. require buttressing well established

It is too every authority which is submitted citations analyzed appraised subsequent court must be to a principal accepted ele- and followed. The before may authority give summar- value be ments which (1) in cited case similar the facts Were follows: ized as (2) to those reasoning the case at bar? Does the analysis employed and the which were in the cited case appeal (3) to the court in the instant case as sound? question Was the decided in the cited case the same (4) that before the court? and Does the decision or the result which was reached in the cited case have bearing upon being the case considered? In short, controlling merely a decision is not because is a analyze decision. The court to which it is cited must appraise it. repetition, again Even at risk of some we turn Judge Phillips to the Passmore decision. In it wrote: “It is true that if the accident had not resulted in Little’s death he would have been entitled to benefits # Compensation under the Workmen’s Law notwithstanding That statement was made the fact that employe, compulsion Little, the deceased was no under according whatever to ride the truck. Passmore, “gratuitously”. furnished the decision, vehicle The truck a small was one and one-half ton Ford, which primarily purpose used Passmore for hauling supplies places materials to and from the roofing where his did crew their work. The truck daily, working driven before hours commenced, from shop place Passmore’s to the of work, and at the close day’s shop. returned to work, Little and privilege riding the other men were afforded the two Usually they privilege, in it. embraced the but at times transporta availed themselves of other means of operated upon public thorough tion. truck fares. Such were facts the Passmore case. injured Oregon clear that if Little had

It is been sought compensation injury, and had workmen’s for his compensation would have been denied him. In fact, pro than once. court has so held more Our

this latest Livingston supra, v. Com., State Ind. Acc. nouncement, quoted following from an annotation in ALE 87 245:

“ general though ‘It a not so rule, is invariable authority, require to no citation of that common as injury going to or from work does an sustained employment in the course of the not arise out of within meaning compensation workmen’s ” acts.’ decision ruled as follows: Our employer pays an for em- hold that if “We job during ployee’s his travel from the site to time relationship employer and em- home, his ployee during period and an that of time, continues during occurring partic- injury and, in the course from causes, travel accidental ular, the time such employment, in the course arises out of and compensable.” and is quoted, language just we see the Pass-

From the contrary employed to ease a view of law more appraising holdings In court. value of this rejecting embracing precedent, or it, courts, all before precedent employed or not determine whether must holdings. principles the local Not to of law adverse Livingston only decision adverse to the Pass- is the (“If not resulted in the accident had more statement been entitled benefits death he would have Little’s Law”), Compensation but March under Workmen’s 142 20 P2d Com., 246, 227, Acc. Or v. State Ind. holding; so, v. also, is Larsen adverse likewise 137, 195, 295 P Com., Or Accident Industrial State said: we principles to the “Applying these facts injury plain plaintiff’s it seems instant nor course of Ms em- out of arose neither ployment. per- He was at time at or work forming any duty which he owed the master, doing any nor interests. He rode he act to further his master’s upon platform purposes for doing and, so, of his own he incurred a risk which was not incidental to his but which was shared the purposes.” common all members public might platform parking who use the Troy Laundry In v. Co., Collins 135 Or 297 P plaintiff, employe Troy Laundry, an 334, the of the scarcely stepped laundry adjacent out of the to the public injured through she walk when obstruc- part laundry’s tion the walk which was equipment. injury It was held that her did not arise employment. out of and in the course of her Hopkins In State Ind. 160 Com., v. Or 95, Acc. plaintiff, upon 83 P2d the 487, who was relief, was employed upon project a Federal SERA which was many miles from his home. lacked Because transportation, permitted quit the foreman him to work early. way and start home While he on along highway, proceeding public injured a he was passing injury a car. Our decision held that the did employe’s not arise out of and the course of the employment. supra,

In Lamm v. Co., Silver Falls Timber Logging Co., v. Flora 133 541, Varrelman Or 277 P injuries, P 290 P 541, 751, unlike the one upon Passmore did not occur suffered a thoroughfare, upon public logging but defendant’s distinction is material. railroad. The When Little, injured upon employe, public Passmore’s exposed dangers no which the common street, he was public But Lamm and not also face. Varrelman, did injured going logging back to while who were camps, exposed dangers were incidental their public never which encountered.

As we one seen, have of the elements which courts appraising into take consideration in the value of a passed upon precedent question it a similar whether is stating decision, to the one at bar. The Passmore question it defined it in these decided, words: anyone evaluating ease”. Thus, “a borderline is the court which announced it decision warned warning is ac- it “a case”. The deemed borderline fact that the court at first decided cented way upon rehearing. and then reversed itself The other only previous one, not final decision reversed but court. that of the lower Circuit Court Further, also long distinguished Judge has had a Bratton, who bench, dissented. career acknowledged decision Passmore there contrary holding. decisions to its federal two were Ins. Farm Automobile of the two State Mut. Co. One Casualty supra; the other is Johnson v. Aetna Brooks, v. supra. Surety Co., & foregoing, that the

From we observe Passmore principle employed law which is rec- decision has ognized This court more than state. once this rejected itself is a material difference it. That in be- If an insured, cases. who was offered the two tween before consulted the Pass- us, the one like meaning holding an effort to learn the of a more that observed the Passmore de- policy, he have would the court as “a borderline the case before termed cision thereby would have been that the warned and ease” repeated holding might if the in facts the next be he have Furthermore, would ob- were different. case previously announced a dif- court that the served holding, he also and would have observed that ferent reading represented the decision he which the only judges. views of two the three holding As have we the in one observed, case is controHing upon subsequent never deemed a if case substantially the facts the two cases are different. The facts in the Passmore case those in the one at materially (1) bar are different: In the Passmore case brought operated upon the truck which death to Little improved public thoroughfares; the in whereas, the “crummy” along private case at bar, the ran hazard part plaintiff’s premises; (2) road ous which was transportation case the Passmore was furnished ‘‘gratuitously” necessary and not as a incident or term employment whereas in our contract; ease the transportation was a or term, incident, the em ployment bargaining and at times was a feature of the place took which between the and the labor (3) plaintiff, upon case union; Passmore entering laying truck, down his tools was no longer exposed employment, to the hazards of his but exposed case at bar the workmen were to the long at hazards of their least as as the crummy logging operated (4) road; coemployes liberty case Little and his Passmore were at or not to ride the truck saw fit, but, employe Accordingly, had no us, case before choice. procuring plaintiff, if the before of insurance had envisioned us, is before the accident which actually occurred and had then later consulted the reasonably it could not decision, have in Passmore applicable Passmore decision would be ferred the accident. rehearing petition for a As contends that noted, ambiguous “engaged in the business” is term place upon bound to therefore, term are, we 334 meaning adopted in

the the Passmore deci- Continuing, petition argues the that are forced sion. we ignore purported meaning given the the same by Casualty Judge Parker Mutual term Lumber Ins. supra. pause upon Let contention Stukes, v. us Co. for a moment. ‘engaged’

The Passmore decision said: “The word Presently action.” it turned to a decision and connotes “ ‘Engaged’ following: quoted the defined in from it is Series, Third Phrases, III at of Words Volume part ‘Engage’ page means to take 258, follows: as may being employed in, however, or Casualty Stukes, Mutual Co. arise.” Lumber Ins. v. commonplace supra, with a definition as took no issue Referring case, of its own as that. facts part transportation of pointed was a his out: “Such transportation employment.” Thus contract but unlike us, one before in that case, part transportation the Passmore “was employment.” It then continued: contract ‘* * “ * Covington v. A.C.L.R.R. case approval 155 438, S.E. cites 194, 158 S.C. Co., Railway Company, v. 97 Sanders S.C. ease of employee return- and holds 283, S.E. 81 transportation ing fur- means from his work employer purpose him is still nished employ- discharge of his duties in the brought under the these cases were While ment. Liability § Employers’ Act, 45 U.S.C.A. Federal appli- seq., principle same, and is here et ” cable.’ apparent foregoing that the it becomes From the by Judge Phillips and results reached difference assigning to from Judge not come Parker did meanings, different “engaged in the business” phrase, largely but from that the facts circumstances Judge cases two were different and that Parker employe, being transported, deemed that an who was employment, under the terms of en- his contract of gaged Judge employment, Phillips in his whereas be- riding employe, through lieved that an while the courtesy employer, engaged. of his was not so

Despite apparently the fact that some courts have proper differed as to the construction that should be placed upon phrase employ- in “while ment of the Insured”, it is that the true, nevertheless, particular differences stemmed factual situa- from any upon tions involved, rather than from real conflict legal principles. phrase plain couched in is language; language long understandable in that has agency in been used the law of and of master and ser- practical upon vant. As a matter, it dificult to is look language ambiguous as in the sense for contended by plaintiff. Throughout petition its brief on the rehearing, speaking phrase, partic- of that and, in discussing ambiguity ular, when a claimed lan- guage plaintiff emphasizes “engaged”. used, the word pays It but little attention to the remainder. The word “engaged” simple very meaning is indeed, word well understood. But it is obvious that it is not the opens key plain meaning the door to the phrase gist of itself. The is clause to be found “in the of the words the Insured”. When, given of a from the facts is ascertained what encompassed the workman’s “contract em- ployment”, scope or, words, other “what is the employment under the contract of his it then hire”, simple most matter to becomes a determine whether or given place employe “engaged time and not at a “carrying scope on”, his or duties “within the in”, employment”, pursuant of Ms to Ms contract with employer. Unambiguous language cannot made am be biguous by argument of counsel or rule law. Terry principle v. is well stated New York This Life 504, 104 F2d as follows: Ins. Co., opinions holding the courts “While foregoing brief of their based outline view, ambiguous reasoning, that command the clause is great respect, escape cannot we conviction fail to consider the overlook language give to to all the used its a whole and meaning. ambiguous apt natural The rule an insurance are be construed clauses import against availed of to the insurer can be ambiguity, force into a contract a nonexistent meanings language or to used, unusual from away expressed sufficient clear- terms refine meaning convey plain parties.” ness concluding, take notice another wish to Before we phase in not discussed our former case of tMs opinion. premise upon the the exclusion clause

Based ambiguous language, we contains in defendant’s urged by plaintiff in to resolve all doubts favor are go giving far insured and so in the insured good permit. In conscience will of doubts as the benefit plaintiff evidently propositions, advancing deems those perpetual and conflict exists between insurer that a constantly argues that It the insurer is the insured. loading policies inimical to the insured. clauses with plaintiff’s passages includes such as these: brief Thus, ‘ ‘‘ by calculating language tricky used and uncertain policies ‘ready-made’ experts’ hand out astute who and provisions”; intricate technical with which ‘swarm’ legal “the “expert policy “a writer”; technician”; * * * lawyers expert and of the insurers draftsmen great using and all acumen obtained skill, with craft through specialized experience”. As education and in- stated, it that when the before is well established and the are doubts which entities, sured insurer two ambiguities generally are resolved in favor stem from present appears instance, insured, of the but and and the insurer one the same. insured are According complaint, to the “at all times mentioned unincorporated defendant is an herein now engage in the association whose subscribers business the subscribers, inter-insurance”. Plaintiff is one of attorney one of the insurers. is, therefore, signs policies, plain- the one fact who such as which possesses, and the act under Colorado, tiff located is policies found in IIIA, CSA, issue is Yol. provides: partner- § 98. That Act “Individuals, eh 87, hereby designated ships corporations of this state, hereby exchange authorized to are re- subscribers, ciprocal contracts with each other, or inter-insurance corporations partnerships and individuals, or with providing indemnity among countries, other states and may against loss which be insured themselves excepting provisions life insur- law, other under * * legislation Oregon of similar nature *.” ance, 749.010 to 749.160. contained OES (d) § 98 of Colorado statute Subsection “* * * attorney provides: shall file writing an instrument exe- commissioner insurance conditioned that subscribers, him for said cuted authority provided for in of certificate issuance may brought (k) action be thereof, subsection property county is situated, thereunder in which may process be had insurance service * '* deputy commissioner, *.” or commissioner, here, of insurance involved under Thus, form anwas insurer it when became an insured. In those any it circumstances, is difficult to find basis plaintiff’s for engage strictures which counsel they speak may when of “insurers”. Moreover, be difficult to find basis for the adverse inferences, indulge. to the “insurer”, ask us to Republic Richel v. Mut. Co., Fire Ins. 129 Kan 332, P However, 282 757. we need decide those matters open this but leave them for future considera- may necessary. tion such when consideration become opinion. petition adhere to our former We rehearing is denied. C.J., concur in result. Lusk, J.,

Latourette,

Case Details

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

Court Name: Oregon Supreme Court

Date Published: Jul 13, 1954

Citation: 275 P.2d 226

Court Abbreviation: Or.