Loughran v. Employers Mutual Indemnity Corp.Loughran v. Employers Mutual Indemnity Corp.
Thе plaintiff herein recovered judgment in Pennsylvania against the principal defendant, Joseph Reа, for damages sustained by the plaintiff through the negligent operation by Rea of his automobile which collided with and killed the plaintiff’s wife. Rea has not paid anything on the judgment. The plaintiff sued on this judgment in Wisconsin and ancillary to the main suit garnished the Employers Mutual Indemnity Corporation on the theory that an indemnity policy issuеd to Rea’s employer, the Masonite Corporation, rendered it indebted to the principal defendant to the amount of the judgment and subject to garnishment. The garnishee defends on the ground that in any event it is not indebted to the principal defendant until he has paid the judgment, and therefore not subject to gаrnishment, and on the further ground that it incurred no liability under its policy for the injuries sustained through the principal defеndant’s negligence.
The learned trial judge decided the issue in favor of the defendant on the ground first stated, for the reason, as
Under the undisputed evidence the plaintiff sustained the injuries for which the judgment was rendered thrоugh negligence of Rea while Rea was engaged in taking a young woman to her home after an evening spent with her in their mutual purely social entertainment. Rea was in the employ of the Masonite Corporation as a traveling salesman. In performance of his duty to his employer he used his own automоbile. This automobile with others owned or rented by other employees was covered by a poliсy issued by the garnishee to the Masonite Corporation. The policy was a “non-ownership” as distinguished from an “ownership” policy. “Non-ownership” policies are procured by employers to protect themselves against liability for injuries sustained through negligence of their employees for which they would be liable under the doctrine of respondeat superior. This doctrine only imposes liability upon employers for injuries inflicted by employees while engaged in the prosecution of the employer’s business. The policy bears thе indorsement “non-ownership liability.” The first paragraph of the in-dorsement is:
“The automobiles coverеd by this policy are those . . . which are now or which may any time during the term of this insurance be owned ... by an emрloyee for his own use in the service of the named insured.”
This implies that only injuries are covered which are sustained while the employees are using the automobiles in the service of the employer — whilе the employees are engaged in the prosecution of the employer’s business — while they arе engaged in the performance of the duties of their
If there were doubt as to the meaning of the coverage clause above quoted, non-liаbility of the employer would result under the clause of the “non-ownership liability” in-dorsement next following the coverage clause therein. This clause is as follows :
“In consideration of the premium at which this policy is written,- it is hereby understood and agreed by and between the named insured and the company that this pоlicy covers the legal liability of the named insured (and of the.named insured only) for the operation of the automobiles specified in the preceding paragraph thereof, and it is hereby agreеd by and between the company and the insured named in the policy that anything in the policy to the cоntrary notwithstanding, the policy does not cover and shall not be construed to cover: (1) . .- . (2) The liability of any person or persons whatsoever, other than the named insured.”
As Rea was not engaged in his employer’s service at the time the plaintiff’s injuries were inflicted, the named in
By the Court. — The judgment of the circuit court is affirmed.