Solly Church v. Consolidated Indemnity & Insurance

Pee Ctjeiam. The defendant appeals from an order striking its answer. The plaintiff recovered damages in an action brought against Samuel F. Cooke for whom defendant had written an accident insurance policy. The defendant disclaimed liability and judgment was entered in default of pleadings. The present action was brought to recover damages by reason of the judgment in the prior action remaining unsatisfied. The sole question is the extent of the coverage. It appears that Church was employed at a service station. He was asked by Cooke, if, on his day off, he did not want to make some repairs to his automobile. Church agreed and went to Cooke’s garage in the rear of his home. While pumping air into the left rear tire, the tire rim suddenly blew off and caused the injuries for which complaint was made in the prior action. Cooke agreed to pay for the service. The policy provides that there should be no coverage for bodily injuries suffered by any employe of the assured while engaged in the repair of Cooke’s motor car. That Church was such employe seems clear. He was employed only, it is true, for a specific work. That circumstance made him no less an employe. The answer struck presented a legal defense and was neither sham or frivolous. The judgment is reversed.