The defendant issued a policy insuring the plaintiff against liability imposed by law for damages because of bodily injury sustained by another person caused by an accident and arising out of the ownership, maintenance or use of an automobile described in the policy. The policy contained a provision that it "does not apply to * * * injury to * * * any employee of the insured while engaged in the business of the insured." The defendant rejected a claim that the insurance policy covered injuries sustained by one Ferdinand May while riding in the plaintiff's car. *Page 364
The defendant contends that May at the time of the accident was an employee of the plaintiff and, therefore, not within the coverage of the policy. Whether the plaintiff or the defendant has the burden of proof upon that issue might be important if there had been a trial at which evidence was received upon disputed questions of fact. Here the parties entered into a "stipulation of facts" and the parties submitted the issue to the trial court to be decided upon the facts so stipulated.
Employment arises from contract or agreement. Such agreement may be made in express words or it may arise from a common understanding implied in what is said and done. Here the parties have stipulated that "May, at the time of his injury, was being transported with other persons from Dunkirk out to plaintiff's farm * * * in plaintiff's truck * * * it being the custom and understanding of the plaintiff to pick up certain of his currant pickers at Dunkirk, transport them to his farm and then after the day's work transport said pickers back to Dunkirk. That said May had so travelled to the plaintiff's farm and picked currants and had been transported back to Dunkirk on the day before the date of the accident in the truck in question. That the plaintiff at the time also had other currant pickers who transported themselves to and from his farm and the said other pickers who did so transport themselves to and from plaintiff's farm received no more compensation for the currants they picked than did May who was transported to and from plaintiff's farm by the plaintiff in the plaintiff's truck in question."
Transportation of workmen by an employer to other places of work in accordance with "custom and understanding" is sufficient to support, if not indeed to dictate the inference or conclusion that an agreement to transport was part of the employment. Even assuming, however, that the stipulation of facts including the existence of a custom and understanding are equivocal, the stipulated facts would certainly not support the opposite conclusion. The parties did not intend the trial judge to decide who has the burden *Page 365 of proof. Such question was removed from the case when the "facts" were stipulated and if the stipulated facts are insufficient to permit determination of the issues, the trial judge should order the issues to be tried out.
RIPPEY, LEWIS, CONWAY and DESMOND, JJ., concur with FINCH, J.; LEHMAN, Ch. J., dissents in opinion in which LOUGHRAN, J., concurs.
Judgment accordingly.