(dissenting). Plaintiff succeeded upon the original trial on the theory he was an employee and not a guest passenger. He alleged in his complaint that he was an employee of Davis and the latter denied the allegation. Obviously plaintiff made the claim of employment so that he might establish a cause of action under the Canadian guest statute. That issue was submitted to a jury under the facts shown and pursuant to a stipulation as to what constituted employment under the Canadian Law. Implicit in the verdict of the jury was the finding that plaintiff was an employee under the facts and law.
The policy of insurance issued to Davis by the defendant company here excluded from coverage employees. The exclusion clause is written in plain and unambiguous language. By its terms the effect of it is not limited to any particular kind of employee or type of employment. It says nothing about casual or permanent employment, and I can see no impelling reason to read into it a subtle distinction of limitation so that plaintiff may qualify his original position for the purpose of obtaining a verdict against the insurance company. The argument that plaintiff stands in the shoes of Davis as against the defendant company can be of no assistance to plaintiff so far as this issue is concerned for Davis, himself, is bound by the finding of the jury that plaintiff was an employee.
I think that plaintiff should he estopped from now asserting that he was not an employee or that he was a casual employee not within the exclusion clause of the policy and hence I dissent and vote to reverse the judgment and dismiss the complaint.
Coon, Halpern and Imrie, JJ., concur with Bergan, J.; Foster, P. J., dissents in a memorandum.
Judgment reversed, on the law and facts, and a new trial ordered, with costs to the appellant to abide the event.