Gibbs v. Employers Mutual Liability & Insurance

"WiNBORNE, I. The question presented is whether plaintiff, as employee of William Russ, is covered by tbe provisions of tbe policy, of indemnity upon wbicb suit is based. Tbe parties debate in this Court tbe force and effect of subsection (d) of tbe clauses of ExclusioNS. While tbe language there used appears to be clear and unambiguous, we are of opinion that tbe first hurdle plaintiff must mount is whether William Russ, separately and individually, is covered by tbe policy. Tbe policy insures North Carolina Pulp Company and William Russ from liability for damage sustained in tbe use of tbe truck in question when used commercially and principally in tbe business occupation of tbe insured as stated in Item 1, that is, in or in connection with manufacture of paper — an undertaking in wbicb tbe insured, tbe Company and Russ, were jointly interested. Tbe hauling of Irish potatoes in wbicb Russ was engaged for pay at tbe time of tbe injury was in no way connected with tbe commercial enterprise covered by tbe policy. It was so adjudged in tbe case of Gibbs v. Russ, 223 N. C., 349, 26 S. E. (2d), 909. There it is stated that “with respect to tbe operation of the truck in hauling Irish potatoes, tbe evidence is insufficient to establish between tbe Pulp Company and defendant Russ tbe relationship of principal and agent or that of partnership.” Hence, it is clear that tbe coverage of tbe policy in question does not extend to tbe liability of Russ individually in tbe operation of tbe truck in a business in wbicb tbe Pulp Company bad no interest. But if tbe policy did so extend, tbe plaintiff must hurdle tbe exclusion clause providing that tbe policy does not apply “to bodily injury to an employee of tbe insured while engaged in tbe employment, other than domestic, of tbe insured, or while engaged in tbe operation, maintenance or repair of tbe automobile.” And defendant cites very respectable authority to sustain tbe validity of this provision. See Associated Indemnity Corp. v. Wachsmith, a decision by tbe Supreme' Court of tbe State of Washington, reported in 99 P. (2d), 420, 127 A. L. R., 531, and *465 Ætna Casualty & S. Co. v. Howell, 108 F. (2d), 148, cited in annotation 127 A. L. R., 542. Compare Hunt v. Casualty Co., 212 N. C., 28, 192 S. E., 843. Tbe judgment below must be Affirmed.