Bayer v. Bayer

Ostrander, J. (after stating the facts). It is obvious that the policy of insurance, or of indemnity, is not an undertaking of the insurer to respond in all cases for injuries to, or death of, any employee of the assured, in ány employment. The purpose plainly is to limit liability to cases of employment “in the operation of and in connection with the business herein stated.” If there is any connection between the carpenter contracting business and the business of draying or hauling personal property for third persons, neither the property nor its owner being in any way connected with the business, it is not pointed out, and I am unable to discover it. Whether the assured hauled the property of his brother for a consideration (as he did), or gratuitously, his agent and employee engaged in the hauling was not employed by the assured in the operation of, or in connection with, the business stated in the policy. Counsel for claimant makes an argument based in part upon the assumption, and assertion, that the statute (Act No. 10, Extra Session 1912) does not contain the words “arising out of and in the course of his em [427] ployment,” but, unlike the statutes of many States, omits the words “arising out of,” and includes only the words “in the course of his employment.” This assumption is unwarranted. Part 2, § 1 (2 Comp. Laws 1915, § 5431). It is not contended that the contract of the insurance company is not controlling according to its terms. It is conceivable that a man may be engaged in more than one business, and as to one or more may elect to come under the terms of the act, and as to another or others elect not to be governed by the act. The declaration of the assured employer is not before us. Upon this record, and considering only the points presented, it must be held that the order of the Industrial Accident Board, as affecting the respondent insurance company, is invalid. It is vacated. Stone, C. J., and Kuhn, Bird, Moore, Steere, Brooke, and Person, JJ., concurred.