On Beheaeing
*308Black & Kendall, of Portland, and McKeown S New-house, of Coos Bay, attorneys for respondent. TOOZE, J.The plaintiff, I-L Logging Company has filed a petition for rehearing which, omitting formal parts, reads as follows:
‘ ‘ 1. The opinion herein is a complete and radical departure from and abandonment of the well-established rules of construction heretofore applied by this Court in the construction of insurance policies.
“2. The construction placed by the Court upon the ambiguous language of the insurance policy issued by respondent is prohibited by the statutes of this State.
“3. The Court overlooked and failed to apply the rule that where courts of high standing have placed a construction upon an insurance policy adverse to that contended for by the insurer and the insurer continues to issue the policy unchanged, the insurer must be deemed to have adopted such adverse construction as a part of the policy.
“4. The Court overlooked and failed to apply its own rule that where courts have differed as to the meaning of language in an insurance policy, ambiguity exists as a matter of fact and of law and such ambiguity must be resolved in favor of the insured.
“5. (a) Though the Court rejected the reasoning of Judge Parker in Lumber Mutual Cas. Co. v. Stakes insofar as it was based upon the reasoning and authority of workmen’s compensation cases; the Court, nevertheless, applied step by step reasoning identical with the reasoning of such cases.
(b) The opinion herein and the application of such reasoning reversed the rule that the insured is entitled to as favorable a construction *309as good conscience will permit and applies instead a rule, heretofore unheard of in the law, of strict construction against the insured and of extremely liberal construction in favor of the insurer.
‘ ‘ 6. The' Court erred in fact and in law in holding that appellant had control over the employees riding in the bus. The record affirmatively shows that appellant had no control over them in the sense that an employer has the right to control his employees.
“7. The effect of the erroneous decision herein is that:
“(a) Though appellant was endeavoring to secure full insurance coverage, it actually was not protected either under respondent’s policy or the Lloyd’s policy.
“(b) Many Oregon employers (and employees) in similar circumstances are deprived of any insurance coverage whatsoever because under the opinion herein the ‘standard’ policy issued by respondent is not applicable, and ‘standard’ employer’s liability policies issued by Lloyd’s clearly afford no coverage.”
Plaintiff has also filed an extensive brief in support of its petition. However, a careful review of that brief has failed to disclose any important point in the case that was not fully argued by counsel and carefully considered by the court upon the original hearing.
We refrain from restating the facts in the case, because they are fully set forth in our original opinion which was handed down July 13,1954.
Before giving attention to the several assignments of error set forth in the petition for rehearing, we wish to take note of what plaintiff claims is the effect of our decision, as set forth in subdivisions (a) and (b) of paragraph 7 thereof.
*310We have held, of course, that under the facts of this case, plaintiff was not protected under defendant’s policy of indemnity insurance. As to whether it was protected under Lloyd’s policy is of no importance in this particular litigation. Plaintiff rejected the contribution and compensation features of our Workmen’s Compensation Act, as it had a right to do. In its relations with its employes, it sought protection elsewhere. The sort of protection it received is its own problem; that is one of the hazards it assumed when it rejected the Act. It has no bearing whatever upon the interpretation that should be given to the provisions of the public liability policy issued by defendant; and what is said with reference to plan-tiff applies to all other employers similarly situated. It might well be pointed out that if these employers are unable to secure the coverage they desire from Lloyd’s or some other indemnity company, the doors to the Workmen’s Compensation Act always remain open to them.
Moreover, the record before us reveals that we need give ourselves no concern over the alleged plight of plaintiff. The statement that “it actually was not protected * * * under :;i * * the Lloyd’s policy” does not accord with the facts, viewed from a practical standpoint. We quote from plaintiff’s opening brief on the appeal to this court, commencing on page 6 thereof, the following:
“Between July 21, 1947, and November 4, 1947, twelve actions were commenced against appellant on account of the injuries to and deaths of employees who were in the crash (Defts. Exs. 4-15; Resp. Ab. 3-5). Since appellant had rejected the Workmen’s Compensation Law (Ab. 5, 15, Tr. 74), the matter was referred by appellant to its attorneys, Maguire, Shields, Morrison & Bailey (Tr. *311128). Ill September, 1947, appellant tendered the defense of said actions to certain underwriters at Lloyd’s, London (Tr. 142), who had issued an employer’s liability policy to appellant (Deft. Ex. 3). A question was raised as to whether the Lloyd’s policy covered (Tr. 151-2), and the total potential liability was more than the potential coverage from that source, so Lloyd’s counsel, Messrs. Senn and Becken, and appellant’s attorneys appeared upon the pleadings and at the trial of the Sidney Spark-man case (Tr. 140, 147, 151-2; Defts. Exs. 4-15). Because of the question of whether Lloyd’s policy covered, the concern of appellant’s counsel over potential uninsured loss, and the fact that Underwriters’ counsel and appellant’s counsel had reached an opinion concerning respondent’s liability (Tr. 145-6, 151-2) an agreement was made whereby the Underwriters would loan appellant up to $100,-000.00, repayable only out of funds recovered from respondent, to dispose of the cases against appellant (Tr. 146-8, 157). Execution of the formal instrument (PI. Ex. P) was postponed until all cases had been settled, so that the exact amount of the loan could be incorporated therein (Tr. 148-9). The actual agreement was made before disposition of any of the cases against appellant had been effected (Tr. 148,157).
“It is admitted (Tr. 50; Ab. 16) that the judgment on the verdict in the Sparkman Case (Deft. Ex. 7) had been satisfied by the payment of $1,187.75; and it was established by uncontradicted and undisputed evidence that the balance of the cases were compromised and settled for a total of $114,500.00 (Tr. 42-45,112,155; PI. Exs. E, Gr, H, I, J, K, N). All cases were dismissed with prejudice (Ab. 17; Deft. Exs. 4-15).” (Italics ours.)
Under Lloyd’s policy the limit of liability was $100,000 with a deductible of $5,000, on each disaster. The policy is entitled: “WOBKMEN’S COMPENSATION (EXCESS SELP-INSUBEBS) POLICY.”
*312Thus it appears that Lloyd’s did indemnify plaintiff under the terms of its policy. Manifestly, the “loan” feature of the dealings between Lloyd’s and plaintiff was more or less a pure fiction. It was simply a contrivance to enable plaintiff, in its own name, to maintain this action against defendant. Plaintiff has nothing to win or lose by our decision. It is a nominal party only. The real party in interest (not in the sense that it could or should be the plaintiff here) is Lloyd’s, London. It, and not the plaintiff, must suffer the effects of our decision. It is significant that Lloyd’s was willing to pay $100,000 indemnity under its policy. That is a substantial sum of money; not a nuisance payment. It is a matter of common knowledge that Lloyd’s lacks much of being a philanthropic institution. It is obvious that its motives in shouldering liability in this case were not guided by a spirt of benevolence. Whether, as a matter of law, it was liable under its policy is not before us for decision; but its actions, which speak louder than words, indicate its own belief that under its policy liability attached. It is, of course, plain that its policy was procured and intended as a substitute for the rejected provisions of the Workmen’s Compensation Act.
On the other hand, a mere reading of defendant’s policy will clearly reveal that it was procured and issued for an entirely different purpose. The policy is, as its title indicates, a public liability policy, and its terms are standard for that type of insurance. Its aim is to indemnify the insured against claims for damages by members of the public generally, as distinguished from claims for damages by employes arising out of the employment relationship. In speaking of the employment relationship, we do not use the term “employment” in its broadest sense, nor did we so use *313it in onr former opinion. On the contrary, we nse it in its well-established, restricted sense,—in the sense that it is used in cases arising under an Employer’s Liability Act, under a Workmen’s Compensation Act, under insurance policies such as we have here, and in situations involving the doctrine of respondeat superior. It is most significant that the exclusion clause in defendant’s policy expressly excludes liability for claims by employes for which the insured might be held liable “under any workmen’s compensation law”.
We now give attention to the specific grounds for a rehearing as assigned by the plaintiff. We preface our discussion by again quoting the exclusion clause of defendant’s policy:
“(a) bodily injury to or sickness, disease or death of any employee of the Insured while engaged in the employment of the Insured, other than a domestic employee, or (b) any obligation for which the Insured or any company as his insurer may be held liable under a/ny workmen’s compensation law.” (Italics ours.)
It is plaintiff’s contention that the phrase “while engaged in the employment of the Insured” is ambiguous. It argues that such ambiguity exists as a matter of fact and of law because certain courts, according to plaintiff, have differed as to the meaning of the same or equivalent language in insurance policies similar to that issued by defendant in this case. In support of that contention it cities the case of Purcell v. Wash. Fid. Nat. Ins. Co., 146 Or 475, 486, 30 P2d 742, and quotes from the opinion of Mr. Justice Rossman as follows:
“Although the defendant contends that the policy is free from any ambiguity, it admits that clauses similar to the one under consideration have received *314constructions ‘tending to support respondent’s views’ by the United States Circuit Court of Appeals for the Third District, and by the Supreme Courts of Arkansas, Colorado, Texas and Washington. Before reviewing the decisions of those jurisdictions, we add that the defendant contends that the weight of authority supports its view. Defendant’s admission that the foregoing jurisdictions have placed upon policies of the character written by it constructions adverse to its position is deserving of more than passing notice. The policy before us was sold September 29, 1926, and, no doubt, its phraseology is the product of skilled lawyers in its employ who were familiar with the decision of the courts. The Arkansas, Colorado and Federal decisions to which defendant makes reference, and which we shall in a moment review, were in the published reports long before this policy was sold to the plaintiff. The Texas decision was announced in 1927, but Southern Surety Co. v. Diercks (Texas Civil Appeals), 250 S.W. 755, the progenitor of the case cited by the defendant, was decided in 1923. Thus, when the defendant wrote this policy it knew of the construction which courts of high standing had placed upon the phraseology which it selected. If there are decisions in conflict with those which we are now mentioning, then an ambiguity exists, and, under the rules aforementioned, the plaintiff must be given the benefit of the doubt. (Italics ours.)
The foregoing must be read in the light of the .facts and circumstances existing in that case and, specifically, in the light of the particular provisions of the insurance contract there involved. In that case it appeared that the particular provision of the insurance policy under consideration had been construed by quite a number of state courts of last resort. In the instant case, however, it appears that the language of the exclusion clause now being considered, or similar lan*315guage, had been construed by only four courts prior to the issuance of defendant’s policy; viz., (1) by the U. S. Cir. Ct. of App., 5th Cir., in May, 1939: Johnson v. Aetna Casualty & Surety Co., 104 F2d 22 (unanimous decision); (2) by the Supreme court of Kansas, in December, 1939: Elliott v. Behner (Casualty Co. of Dallas, Texas, Garnishee), 150 Kan 876, 96 P2d 852 (two judges dissenting); (3) by the U. S. Cir. Ct. of App., 8th Cir., in July, 1943: State Farm Mut. Automobile Ins. Co. v. Brooks, 136 F2d 807 (unanimous decision) ; and (4) by the U. S. Cir. Ct. of App., 10th Cir., in January, 1945: B. H. Passmore Metal & Roofing Co., Inc. v. New Amsterdam Cas. Co., 147 F2d 536 (three judges participating, one dissenting). In the first case decided, i.e., the Johnson case, the court construed language similar to that in question here contrary to plaintiff’s contentions in this case, and as we construed it in our former opinion. The third case, i.e., the Brooks case, followed the same rule announced in the Johnson case, citing the Johnson ease as an authority for its position. In the Passmore ease, which followed in point of time both the Johnson and Brooks cases, the court arrived at a conclusion seemingly in keeping with plaintiff’s claim in this litigation. The court, in the body of its opinion, noted the decision in the Brooks case and apparently attempted to distinguish it on the facts, although its statement of the facts in that case appears to have been in error. In the Brooks case, the boys were being transported to their home when the accident occurred, and not to another place of work to perform additional duties, as Judge Phillips stated. Also, in the body of its opinion in the Passmore case, the court ignored the holding in the Johnson case. However, in passing, we note with *316interest note 9 appended to the Passmore decision, found on page 539 of 147 F2d, and reading as follows:
“Johnson v. Aetna Casualty & Surety Co., 5 Cir., 104 F2d 22, 24, relied on by the Casualty Company, is distinguishable from the instant case. There, the policy excluded from the coverage ‘any obligation for which the insured may be held liable under any workmen’s compensation law. ’ The court held that the employee, while riding in a conveyance furnished by his employer from the place of work to his home 40 miles distant, was injured in the course of his employment, and, therefore, he was entitled to benefits under the Workmen's Compensation Law and the accident was excluded from the coverage of the policy. Here, the question is, was Little at the time of the accident engaged in the business of his employer?”
At first glance, the Elliott decision by the Kansas court would seem to support the claims of plaintiff relative to the construction that should be given the provision of defendant’s policy with which we are concerned. Yet, a close analysis of the opinion in that case raises a serious question as to whether it is authority for or against plaintiff’s position. We shall later point out some rather significant features of that opinion.
However, it is highly questionable that the diversity of opinion shown in the four cases mentioned established an existing ambiguity in the language employed in the policy as a matter of fact or law within the meaning of the rule as stated by Mr. Justice Rossman. Decisions rendered by several courts of last resort since the instant policy was issued may have the effect of establishing such ambiguity within the meaning of the rule. Yet, when all is said and done, conflicting conclusions by a number of courts is only evidence of am*317biguity. It is not necessarily conclusive. The rule is stated in 13 Appleman, Insurance Law and Practice, 105, § 7404, as follows:
“ # * The very fact that a number of courts have reached conflicting conclusions as to the interpretation of a certain provision is frequently considered evidence of ambiguity. Conversely, if the terms of the policy have a clear meaning by judicial decision, it can scarcely be said that they are ambiguous, so as to bring into effect the rule of strict construction. ”
The rule announced by Mr. Justice Rossman is a sound rule and ordinarily is applied when necessary under circumstances such as existed in the Purcell case. The fact remains, nevertheless, that it is but one of the many secondary rules for the construction of insurance contracts that have been established by court decisions, and, like most other rules of construction, depends for its application and effect upon the particular facts before the court. Stewart v. Continental Cas. Co., 141 Wash 213, 250 P 1084, 49 ALR 960, and note.
However, it must be borne in mind that the primary and governing rule for the construction of insurance contracts, as of all other contracts, is to ascertain and declare the intention of the parties. In applying this rule, the contract must be considered as a whole, and, in some instances, resort may be had to extrinsic circumstances attending the execution of the agreement. All other rules of construction are secondary and are designed for the purpose of aiding in the application of the primary rule. In 13 Appleman, Insurance Law and Practice, 29, §7385, it is said:
“It has been stated that the polar star of construction of an insurance contract is the intention *318of the parties, and it is the duty of a court, if possible, to ascertain and apply that intention, regardless of whether the result is favorable to one party or another, applying the principles of construction previously examined. All other rules of construction are subservient to this.”
In 13 Appleman, Insurance Law and Practice, 11, § 7383, it is further stated:
“It has been stated that a contract of insurance, being the law between the parties, should have every stipulation construed as written. It being presumed that every condition was intended to accomplish some purpose, it is not to be considered that idle provisions were inserted. Each word is deemed to have some meaning, and none should be assumed to be superfluous. All portions of a policy should be considered in construing it. * * *.
“It has been stated, therefore, that a court will look to the entire instrument and all of its provisions to ascertain its meaning, and will construe it as a whole or in its entirety. * * * The entire context and subject matter of the contract of insurance will be considered in determining the meaning and application of specific words and expressions. Nor will any insurance policy be considered ambiguous merely because a word or phrase, isolated from its context, is susceptible to more than one meaning, or because, in its context, it is susceptible to one reasonable and one unreasonable meaning.
“ The courts will, rather, take into consideration the apparent object or purpose of the insurance, in making its construction, ana may consider, along with the context of the policy, the subject matter of insurance, the situation of the parties, and the circumstances surrounding the making of the contract.” (Italics ours.)
There is no court-made rule of construction applying to insurance contracts that is binding upon us to the extent that in every case coming before us we are re*319quired to close our eyes to the particular factual situation involved, to abandon our own reasoning powers and ignore precedents established by prior decisions of this court, and to blindly follow a path some court of a foreign jurisdiction may have followed, or adopt a narrow and strained interpretation of the language employed in the contract simply because such an interpretation might be favorable to an insured.
For the purposes of this case, it may be conceded that the phrase “while engaged in the employment of the Insured”, as used in the exclusion clause, is ambiguous, in the sense that we are called upon to specify with distinctness its meaning. In our former opinion we endeavored to make it clear that in our judgment the language employed in defendant’s policy has the same meaning as the phrase “arising out of and in the course of employment”, as used in our Workmen’s Compensation Act. That conclusion was reached after thoughtful consideration and was deliberately stated. We find no reason for altering our position in that respect. However, from our concession of ambiguity in the sense mentioned, it does not necessarily follow that, under the rule that ambiguous language in an insurance contract should ordinarily be strictly construed against the insurer and libérally in favor of the insured, we are bound to adopt the construction urged upon us by plaintiff: that it means that the employe must be actually engaged in performing the particular work which he is paid to perform. The rule itself is a court-made rule; it does not have a specific statutory basis. It is a rule that is applied when the particular facts of a case warrant its application and when such application will lead to a sound conclusion. ORS 42.260, cited by plaintiff in support of its contention that the rule mentioned has a statutory basis, does not *320specifically apply to insurance contracts; it is a general statute which on its face shows that in any given case its application depends upon the particular facts involved. That statute provides:
“When the terms of an agreement have been intended in a different sense by the parties, that sense is to prevail, against either party, in which he supposed the other understood it. When different constructions of a provision are otherwise equally proper, that construction is to be taken which is most favorable to the party in whose favor the provision was made.”
However, we do not wish to be understood as deviating in the slightest degree from the firmly-established rule in this state that where the construction of an insurance policy containing ambiguous language is involved, the provisions should be liberally construed in favor of the insured. Nevertheless, as indicated, the rule must be considered in the light of other equally well-established rules of construction, and, particularly, in the light of the primary rule above stated. Its application must lead to a sound conclusion under all the facts and circumstances in issue.
The plaintiff argues that defendant’s policy was issued after certain courts had construed the clause in question unfavorably to defendant’s present contention, and that it might well be considered that the policy was issued with that construction upon it. Plaintiff states:
“Under the well settled law of Oregon the policy will be construed as in the cases decided BEFORE the policy was written and not in accordance with those decided afterwards; the latter decisions merely demonstrate the existence of an ambiguity and the assured must be given the benefit of the construction most favorable to him.”
*321Substantially tbe same argument was made upon tbe original bearing. In support of its claim tbat tbe wording o.f tbe exclusion clause in defendant’s policy had been construed unfavorably to its contention in this case prior to the issuance of the policy under consideration, plaintiff then cited, and again cites, two decisions : the Passmore case, and Elliott v. Behner, supra. We previously stated that we would discuss the Elliott case. True, we discussed it in our former opinion, but inasmuch as there is one phase of the decision to which we did not give detailed attention, we will now supply that omission.
The case of Elliott v. Behner, supra, upon which plaintiff relies, was a sequel to the case of Elliott v. Behner, 146 Kan 827, 73 P2d 1116. In neither case was the Workmen’s Compensation Law involved directly or indirectly. The facts in that case were entirely different from the facts in the instant case, as we pointed out in our former opinion.
The exclusion clause of the policy in the Kansas case read:
“* * * because of Bodily Injury to any employee of the Assured (except household servants other than chauffeurs) while engaged in any business or occupation of the Assured * * (Italics ours.)
In construing the phrase “while engaged in any business or occupation of the Assured”, and to determine what it meant, the Kansas court very properly resorted to a consideration of what it deemed to be a somewhat similar provision in its state Workmen’s Compensation Act and its own decisions with reference thereto. Kef erring to the language used in the exclusion clause, it said (at page 856 of 96 P2d) :
“ There is language something like that in this contract m Q.8. 1935, 44-501, the workmen’s com*322pensation act. That section reads, in part, as follows:
_ “ ‘If in any employment to which this act applies, personal injury by accident arising out of and in the course of employment is caused to a workman * .
“This court has held that an injury must ‘arise out of’ and happen ‘in the course of’ the employment in order for the workmen’s compensation act to apply. See Rush v. Empire Oil & Refining Co., 140 Kan. 198, 34 P2d 542, 543, and cases cited. There this court said:
“ ‘Did the accident which caused plaintiff’s injury arise “out of ” his employment? Even when other conditions exist, authorizing the award of compensation, it is essential that the accident which causes injury to the employee arise “out of” and “in the course of” his employment. * * * Both conditions must exist. Bevard v. Coal Co., 101 Kan. 207, 208, 156 P. 657; Haas v. Light & Power Co., 109 Kan. 197, 203, 198 P. 174. The terms are not to be confused. They mean separate things. “In the course of” employment simply means while the employment was in progress. Cox v. Refining Co., 108 Kan. 320, 195 P. 863, 19 A.L.R. 90. Those words point to the time, place, and circumstances under which the accident took place. State Highway Commission v. Saylor, 252 Ky. 743, 68 S.W.(2d) 26. Applying these authorities to the accident which caused claimant’s injury in this case, there is no difficulty in saying that the accident arose “in the course of” his employment. But that is not enough. It is essential also that it arose “out of” the employment'. * * *’.
“It is not enough that the person injured by [sic] an employee of the assured for this clause to exempt the garnishee from liability, the injury must also have happened while the injured man was engaged in the business or occupation of the assured. *323Elliott was not so engaged when the accident occurred.” (Italics ours.)
Before discussing the law of the case as noted, the Kansas court had stated (page 855):
“Garnishee argues that Elliott was an employee engaged in the business or occupation of the assured, that is, the county, when he was killed and on this account is not liable under the policy on account of his death. The answer to be given depends upon whether vmder the facts and circumstances of this case Elliott at the time he was hilled was an employee of the assured and engaged in the business or occupation of the assured. * * *.
66 * # * * &
“* * * In this case Elliott had finished eight hours work for the county. The trip home in the truch was no part of his employment. He paid nothing for it and could ride in the truch or not as he saw fit. He was performing no service for the county when thus riding.” (Italics ours.)
Under the facts in that case it is clear that the fatal accident did not “arise out of” Elliott’s employment, as that term is ordinarily construed and applied in Workmen’s Compensation cases. That, in substance, is what the Kansas court said. It based its ultimate conclusions upon the particular facts with which it had to deal. But it is significant that it grounded its final decision as above quoted upon the discussion immediately preceding respecting the Workmen’s Compensation Act.
As authority for its claim that “an insurance company which continues to epxploy a clause which has been construed unfavorably to its present contention may well be considered to have issued the policy with that construction upon it, or to have adopted it”, plaintiff cites three cases: Fidelity & Casualty Co. v. Lowen*324stein, 97 F 17, 19; Prudential Ins. Co. v. Harris, 254 Ky 28, 70 SW2d 949, 953-4; Stanley v. American Motorist Ins. Co., 195 Md 180, 73 A2d 1, 4.
In the Lowenstein case the court said:
“The defendant company issued the policy in suit, * * *, after it was advised by the decisions to which reference has been made, one of which was a construction of its own contract, that, as interpreted by the courts of last resort in several states, the policy as drawn would not exempt it from liability * * *. * * * We are unwilling to concede that an insurance company may continue to issue policies without any modification of their terms, after certain provisions thereof have been construed by several courts of the highest character and ability, and be heard to insist, in controversies be-between itself and the insured with respect to such subsequently issued policies, that they do not in fact cover risks which they had been judicially adjudged to cover before they were issued.” (Italics ours.)
In- the Stanley case the Maryland court said:
“* * #. * * * parties who adopt an insurance policy, which apparently has had nationwide use and has been judicially construed in five or six states, adopt with it the uniform judicial construction that it has received in other states.” (Italics ours.)
The Kentucky court spoke as follows in the Harris case:
“# * * jpor twenty years and more this rule of construction has been consistently applied, and every insurance policy of this character issued in the state during that time has been with the knowledge that their terms would be so defined by the courts. If the insurance companies have not been altogether satisfied, we are aware of no reason *325why a more explicit limitation could not have been incorporated in the policies. * * *.
“So it may logically be said that the contracts have been entered into with the understanding by both parties that their legal meaning is as indicated. It is not merely the age of a rule nor the frequency of its application that gives stability, for error is not less error because it has perhaps become gray with the years or smooth with use. But, when contracts have been made under the authority of a consistent judicial course of construction, it should be a very compelling situation that would warrant a change which would adversely affect rights acquired under that policy.” (Italics ours.)
The rule announced by the above courts is certainly a sound rule, but it is manifestly inapplicable to the situation in this case. Prior to the issuance of defendant’s policy, it had not been directly construed by any court. Neither had the language of its policy, nor similar language, been given “uniform judicial construction” by courts in five or six states, nor had there been “a consistent judicial course of construction” respecting it. On the contrary, only two courts at most had construed the language favorably to plaintiff’s contention; whereas two other courts had definitely taken the opposite view. In such circumstances it is doubtful that any court would apply the rule contended for by plaintiff. We refuse to do so.
As previously noted, we held in our f ormer opinion that the phrase “while engaged in the employment,” as used in defendant’s policy, has the same meaning as the phrase “arising out of and in the course of the employment”, used in Workmen’s Compensation Acts. We again so hold.
It is a well-settled general rule, that an injury sustained by a workman in going to or from work does not *326arise out of and in the course of his employment. However, several exceptions to that general rule are equally well settled. These exceptions were firmly established by many decisions of courts of last resort in many states, including our own, long before defendant’s policy was issued in this case, and, adopting plaintiff’s own argument and the authorities it cites, defendant’s policy may and should be read in the light thereof.
An employer may agree, either expressly or impliedly, that the relationship between himself and his employe shall continue during the period of “going to and coming from” the actual job site, in which case it is generally held that an accidental injury sustained by the employe while “going or coming” is one that “arises out of and in the course of the employment”. This is particularly true where, as here, the employer furnishes transportation to and from the work as a necessary part of the contract of employment. The same situation may arise when an employer, as a part of the contract of hire, pays the workman an extra sum of money to cover the cost of transportation, or where the employer compensates the employe for the period of time required in going to or from the work. Each case is decided upon its own facts. There is no fixed rule decisive of all eases. The record in the instant case supports a conclusion that the transportation furnished by the employer was expressly made a part of the contract of hire and was a necessary incident thereof. Such transportation was the only practical means of getting the workmen to and from the job site. Livingston v. State Ind. Acc. Com., 200 Or 468, 266 P2d 684, 13 NACCA LJ 27; Lamm v. Silver Falls Timber Co., 133 Or 468, 277 P 91, 286 P 527, 291 P 375; Serrano v. Ind. Comm., 75 Ariz 326, 256 P2d 709; Kobe v. Ind. Acc. Com., 35 Cal2d 33, 215 P2d 736; Voehl v. *327Indemnity Ins. Co. of North America, 288 US 162, 53 S Ct 380, 77 L ed 676, 87 ALR 245, and note commencing at page 250, Gettlin v. Maryland Cas. Co., 196 F2d 249.
It would seem axiomatic that a workman is engaged in his employment át all times while he is doing something for the benefit of his employer, pursuant to his contract of hire. That “something” does not necessarily mean the actual swinging of the axe, the operation of the donkey, the handling of the lumber on the green chain, or other activity for the performance of which one is employed. It may include other things. When transportation to and from the job site is necessarily furnished by the employer as a part of the contract of employment, and, as here, to further the business of the employer, there can be no question but that the workmen are engaged in the duties of their employment from the moment they enter the bus (or other means of transportation) provided by the employer for that purpose until they are discharged therefrom at the end of the day’s work. It is immaterial that the workmen also benefit from the transportation. Under the facts and circumstances of this case, it is obvious that from the moment the workmen entered the bus and transportation began, their movements were controlled by the employer; they had no control over the operation of the vehicle, nor did they have the right to direct it. That was exclusively the business of the employer.
It is manifest that our previous decision is not wrong unless we mow find ourselves caught in a plight which compels us to embrace the Passmore decision, even though the careful consideration we gave to it when we wrote our original opinion caused us to reject the holding in that case. The petition for a rehearing does not contend that the Passmore decision was cor*328rectly decided and that it is harmonious with our laws and previous decisions, but insists that this court and all other courts confronted with cases like this one have been caught in a vise which forces them to adopt the Passmore holding.
The petition for a rehearing is based upon the premise that if a court anywhere has construed a provision in an insurance policy favorably to the insured, thereupon all other courts which subsequently construe a similar provision must follow it. The latter becomes the bellwether for the flock, and all subsequent courts must follow in lock step. They can engage in no reasoning process: “Their’s not to make reply, Their’s not to reason why, Their’s but to do and die.”
Under the rule which the plaintiff asks us to follow, our previous decision would be correct if Judge Parker had pronounced his decision in Lumber Mutual Casualty Ins. Co. v. Stukes, 164 F2d 571, a day or so before the defendant issued its policy to plaintiff, but, since he did not do so, we must reverse our previous decision and follow, willy-nilly, the decision written by Judge Phillips. Thus, we are asked to decide this ease upon a timetable basis. But following plaintiff’s own argument, the Passmore decision is clearly erroneous because it did not adopt the interpretation placed upon the phrase in question in two prior cases: Johnson v. Aetna Casualty & Surety Co. (the first case), supra; and State Farm Mut. Automobile Ins. Co. v. Brooks, supra.
It is too well established to require a buttressing with citations that every authority which is submitted to a subsequent court must be analyzed and appraised before it is accepted and followed. The principal elements which give an authority value may be summarized as follows: (1) Were the facts in cited case similar *329to those in the case at bar? (2) Does the reasoning and the analysis which were employed in the cited case appeal to the court in the instant case as sound? (3) Was the question decided in the cited case the same as that before the court? and (4) Does the decision or the result which was reached in the cited case have a bearing upon the case being considered? In short, a decision is not controlling merely because it is a decision. The court to which it is cited must analyze and appraise it.
Even at the risk of some repetition, we turn again to the Passmore decision. In it Judge Phillips wrote: “It is true that if the accident had not resulted in Little’s death he would have been entitled to benefits under the Workmen’s Compensation Law # That statement was made notwithstanding the fact that Little, the deceased employe, was under no compulsion whatever to ride in the truck. Passmore, according to the decision, furnished the vehicle “gratuitously”. The truck was a small one and one-half ton Ford, which was used by Passmore primarily for the purpose of hauling materials and supplies to and from the places where his crew did their roofing work. The truck was driven daily, before working hours commenced, from Passmore’s shop to the place of work, and at the close of the day’s work, returned to the shop. Little and the other two men were afforded the privilege of riding in it. Usually they embraced the privilege, but at times they availed themselves of other means of transportation. The truck operated upon the public thoroughfares. Such were the facts in the Passmore case.
It is clear that if Little had been injured in Oregon and had sought workmen’s compensation for his injury, compensation would have been denied him. In fact, *330this court has so held more than once. Our latest pronouncement, Livingston v. State Ind. Acc. Com., supra, quoted the following from an annotation in 87 ALE 245:
“ ‘It is a general though not invariable rule, so common as to require no citation of authority, that an injury sustained in going to or from work does not arise out of and in the course of the employment within the meaning of workmen’s compensation acts.’ ”
Our decision ruled as follows:
“We hold that if an employer pays for the employee’s time during his travel from the job site to his home, the relationship of employer and employee continues during that period of time, and an injury occurring during the course and, in particular, the time of such travel from accidental causes, arises out of and in the course of the employment, and is compensable.”
From the language just quoted, we see that the Pass-more ease employed a view of the law contrary to the holdings of this court. In appraising the value of a precedent, all courts, before embracing or rejecting it, must determine whether or not the precedent employed principles of law adverse to the local holdings. Not only is the Livingston decision adverse to the Pass-more statement (“If the accident had not resulted in Little’s death he would have been entitled to benefits under the Workmen’s Compensation Law”), but March v. State Ind. Acc. Com., 142 Or 246, 20 P2d 227, is likewise adverse to that holding; so, also, is Larsen v. State Industrial Accident Com., 135 Or 137, 295 P 195, in which we said:
“Applying these principles to the facts of the instant case, it seems plain that plaintiff’s injury neither arose out of nor in the course of Ms em*331ployment. He was not at the time at work or performing any duty which he owed to the master, nor was he doing any act to further his master’s interests. He rode upon the platform for purposes of his own and, in doing so, he incurred a risk which was not incidental to his employment but which was shared in common by all members of the public who might use the platform for parking purposes.”
In Collins v. Troy Laundry Co., 135 Or 580, 297 P 334, the plaintiff, an employe of the Troy Laundry, had scarcely stepped out of the laundry to the adjacent public walk when she was injured through an obstruction upon the walk which was a part of the laundry’s equipment. It was held that her injury did not arise out of and in the course of her employment.
In Hopkins v. State Ind. Acc. Com., 160 Or 95, 83 P2d 487, the plaintiff, who was upon relief, was employed upon a Federal SERA project which was many miles from his home. Because the plaintiff lacked transportation, the foreman permitted him to quit work and start home early. While he was on his way and proceeding along a public highway, he was injured by a passing car. Our decision held that the injury did not arise out of and in the course of the employe’s employment.
In Lamm v. Silver Falls Timber Co., supra, and Varrelman v. Flora Logging Co., 133 Or 541, 277 P 97, 286 P 541, 290 P 751, the injuries, unlike the one suffered in the Passmore case, did not occur upon a public thoroughfare, but upon the defendant’s logging railroad. The distinction is material. When Little, Passmore’s employe, was injured upon the public street, he was exposed to no dangers which the common public did not also face. But Lamm and Varrelman, who were injured while going back to the logging *332camps, were exposed to dangers incidental to their employment which the public never encountered.
As we have seen, one of the elements which courts take into consideration in appraising the value of a precedent is whether it passed upon a question similar to the one at bar. The Passmore decision, in stating the question which it decided, defined it in these words: “a borderline ease”. Thus, anyone evaluating that decision is warned that the court which announced it deemed it “a borderline case”. The warning is accented by the fact that the court at first decided it the other way and then reversed itself upon rehearing. The final decision reversed not only the previous one, but also that of the lower court. Further, Circuit Court Judge Bratton, who has had a long and distinguished career upon the bench, dissented.
The Passmore decision acknowledged that there were two federal decisions contrary to its holding. One of the two is State Farm Mut. Automobile Ins. Co. v. Brooks, supra; the other is Johnson v. Aetna Casualty & Surety Co., supra.
From the foregoing, we observe that the Passmore decision employed a principle of law which is not recognized in this state. This court has more than once rejected it. That in itself is a material difference between the two cases. If an insured, who was offered a policy like the one before us, had consulted the Pass-more holding in an effort to learn the meaning of a policy, he would have observed that the Passmore decision termed the case before the court as “a borderline ease” and thereby would have been warned that the holding might not be repeated if the facts in the next case were different. Furthermore, he would have observed that the court had previously announced a different holding, and he would also have observed that *333the decision which he was reading represented the views of only two of the three judges.
As we have observed, the holding in one case is never deemed controHing upon a subsequent case if the facts of the two cases are substantially different. The facts in the Passmore case and those in the one at bar are materially different: (1) In the Passmore case the truck which brought death to Little operated upon the improved public thoroughfares; whereas, in the case at bar, the “crummy” ran along a private hazardous road which was a part of plaintiff’s premises; (2) in the Passmore case the transportation was furnished ‘ ‘gratuitously” and not as a necessary incident or term of the employment contract; whereas in our ease the transportation was a term, or incident, of the employment and at times was a feature of the bargaining which took place between the plaintiff and the labor union; (3) in the Passmore case the plaintiff, upon laying down his tools and entering the truck, was no longer exposed to the hazards of his employment, but in the case at bar the workmen were exposed to the hazards of their employment at least as long as the crummy operated upon the logging road; (4) in the Passmore case Little and his coemployes were at liberty to ride in the truck or not as they saw fit, but, in the case before us, the employe had no choice. Accordingly, if the plaintiff, before procuring the policy of insurance which is before us, had envisioned the accident which actually later occurred and had then consulted the Passmore decision, it could not reasonably have inferred that the Passmore decision would be applicable to the accident.
As noted, the petition for a rehearing contends that the term “engaged in the business” is ambiguous and that we are, therefore, bound to place upon that term *334the meaning which was adopted in the Passmore decision. Continuing, the petition argues that we are forced to ignore the purported meaning given to the same term by Judge Parker in Lumber Mutual Casualty Ins. Co. v. Stukes, supra. Let us pause upon that contention for a moment.
The Passmore decision said: “The word ‘engaged’ connotes action.” Presently it turned to a decision and quoted from it the following: “ ‘Engaged’ is defined in Volume III of Words and Phrases, Third Series, at page 258, as follows: ‘Engage’ means to take part in or being employed in, however, the employment may arise.” Lumber Mutual Casualty Ins. Co. v. Stukes, supra, took no issue with a definition as commonplace as that. Referring to the facts of its own case, it pointed out: “Such transportation was a part of his contract of employment.” Thus the transportation in that case, as in the one before us, but unlike the transportation in the Passmore case, “was a part of his contract of employment.” It then continued:
“ ‘* * * The case of Covington v. A.C.L.R.R. Co., 158 S.C. 194, 155 S.E. 438, cites with approval the ease of Sanders v. Railway Company, 97 S.C. 50, 81 S.E. 283, and holds that an employee returning from his work by means of transportation furnished him for that purpose by the employer is still engaged in the discharge of the duties of his employment. While these cases were brought under the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq., the principle is the same, and is here applicable.’ ”
From the foregoing it becomes apparent that the difference in the results reached by Judge Phillips and Judge Parker did not come from assigning to the phrase, “engaged in the business” different meanings, *335but largely from the circumstances that the facts of the two cases were different and that Judge Parker deemed that an employe, who was being transported, under the terms of his contract of employment, was engaged in his employment, whereas Judge Phillips believed that an employe, while riding through the courtesy of his employer, was not so engaged.
Despite the fact that some courts have apparently differed as to the proper construction that should be placed upon the phrase “while engaged in the employment of the Insured”, it is true, nevertheless, that the differences stemmed from the particular factual situations involved, rather than from any real conflict upon legal principles. The phrase is couched in plain and understandable language; in language that has long been used in the law of agency and of master and servant. As a practical matter, it is dificult to look upon the language as ambiguous in the sense contended for by plaintiff. Throughout its brief on the petition for rehearing, in speaking of that phrase, and, in particular, when discussing a claimed ambiguity in the language used, plaintiff emphasizes the word “engaged”. It pays but little attention to the remainder. The word “engaged” is a very simple word indeed, its meaning well understood. But it is obvious that it is not the key that opens the door to the plain meaning of the phrase itself. The gist of the clause is to be found in the words “in the employment of the Insured”. When, from the facts of a given case, it is ascertained what is encompassed by the workman’s “contract of employment”, or, in other words, “what is the scope of his employment under the contract of hire”, it then becomes a most simple matter to determine whether or not at a given time and place an employe was “engaged in”, or “carrying on”, his duties “within the scope *336of Ms employment”, pursuant to Ms contract with his employer. Unambiguous language cannot be made ambiguous by any argument of counsel or rule of law. This principle is well stated in Terry v. New York Life Ins. Co., 104 F2d 498, 504, as follows:
“While the opinions of the courts holding the view, based upon the foregoing brief outline of their reasoning, that the clause is ambiguous command great respect, we cannot escape the conviction that they overlook and fail to consider the policy as a whole and to give to all the language used its apt and natural meaning. The rule that ambiguous clauses of an insurance policy are to be construed against the insurer can not be availed of to import into a contract a nonexistent ambiguity, to force unusual meanings from the language used, or to refine away terms expressed with sufficient clearness to convey the plain meaning of the parties.”
Before concluding, we wish to take notice of another phase of tMs case that was not discussed in our former opinion.
Based upon the premise that the exclusion clause in defendant’s policy contains ambiguous language, we are urged by plaintiff to resolve all doubts in favor of the insured and to go so far in giving the insured the benefit of doubts as good conscience will permit. In advancing those propositions, plaintiff evidently deems that a perpetual conflict exists between the insurer and the insured. It argues that the insurer is constantly loading its policies with clauses inimical to the insured. Thus, plaintiff’s brief includes passages such as these: ‘ ‘ the tricky and uncertain language used by ‘ calculating and astute experts’ who hand out policies ‘ready-made’ which ‘swarm’ with intricate technical provisions”; “expert policy writer”; “a legal technician”; “the expert lawyers and draftsmen of the insurers * * * *337with great craft and skill, using all acumen obtained through specialized education and experience”. As before stated, it is well established that when the insured and the insurer are two entities, doubts which stem from ambiguities are generally resolved in favor of the insured, but in the present instance, it appears that the insured and the insurer are one and the same.
According to the complaint, “at all times mentioned herein defendant was and now is an unincorporated association whose subscribers engage in the business of inter-insurance”. Plaintiff is one of the subscribers, and is, therefore, one of the insurers. The attorney in fact who signs the policies, such as the one which plaintiff possesses, is located in Colorado, and the act under which the policies issue is found in Yol. IIIA, 35 CSA, eh 87, § 98. That Act provides: “Individuals, partnerships and corporations of this state, hereby designated as subscribers, are hereby authorized to exchange reciprocal or inter-insurance contracts with each other, or with individuals, partnerships and corporations of other states and countries, providing indemnity among themselves for any loss which may be insured against under other provisions of the law, excepting life insurance, * * *.” Oregon legislation of similar nature is contained in OES 749.010 to 749.160.
Subsection (d) of § 98 of the Colorado statute provides: “* * * the attorney shall file with the insurance commissioner an instrument in writing executed by him for said subscribers, conditioned that upon the issuance of certificate of authority provided for in subsection (k) thereof, action may be brought in the county in which the property thereunder is situated, and service of process may be had upon the insurance commissioner, or deputy commissioner, * '* *.”
Thus, under the form of insurance involved here, *338plaintiff was an insurer when it became an insured. In those circumstances, it is difficult to find any basis for the strictures in which plaintiff’s counsel engage when they speak of “insurers”. Moreover, it may be difficult to find any basis for the inferences, adverse to the “insurer”, in which they ask us to indulge. Richel v. Republic Mut. Fire Ins. Co., 129 Kan 332, 282 P 757. However, we need not decide those matters in this case, but leave them open for future consideration when such consideration may become necessary.
We adhere to our former opinion. The petition for rehearing is denied.
Latourette, C.J., and Lusk, J., concur in the result.