dissenting in part, concurring in part. I feel that appellant was entitled to its instruction No. 9 as offered. It was entitled to have the jury informed that there was no requirement that young Owen be a regular employee in order to make the exclusion applicable. In Walker v. Countryside Casualty Co., 239 Ark. 1085, 396 S.W. 2d 824, we said:
It is pointed out that at the time of the injury, neither Koch nor Walker had discussed payment for the assistance that Walker would render in greasing the truck. As an alternative contention, it is asserted that, at most, Walker was only a casual employee, and that the term “employee,” as used in automobile exclusionary clauses, should apply only to regular employees as distinguished from casual or incidental employees. We cannot agree with these assertions, and it appears that the weight of authority is against appellants’ contentions. The policy provides that there is no coverage for bodily injury to any employee (arising out of employment by the insured).
* * *
A succinct discussion of the meaning of employment is found in Pennsylvania Casualty Company v. Elkins, 70 F. Supp. 155 (E. D. Ky.). There, the employment of the injured person, Nave, was certainly incidental, for Nave was regularly employed elsewhere but on the occasion in question, agreed to accompany Elkins on h trip to Tennessee for the purpose of delivering a load of cattle. While on the return trip, the truck, driven by Elkins, overturned, and Nave was killed. Elkins’ automobile liability insurance policy contained the provision that coverage was excluded for “bodily injury to or death of any employee of the insured while engaged in the employment, other than domestic, of the insured.” The party contending that coverage was afforded argued:
“That at the time of the accident which resulted in his death Ernest Nave was not an ‘employee’ of William Elkins, the insured, in any sense of the word but, having other regular employment, he was merely a casual incidental and temporary helper, voluntarily rendering a particular service as an accommodation to Elkins;
“That the phrase ‘any employee,’ as used in the exclusion provision of the policy is ambiguous and that it is susceptible of being interpreted in a restrictive sense importing regularity and continuity of service for wages or salary rather than in the broader sense including every type of the relationship of employee and hence, under the familiar rule that where a provision of an insurance policy is open to two or more interpretations the one most favorable to the insured must be adopted, the exclusion clause of the policy here in question should be interpreted to have no application to Ernest Nave whose employment, if such relation existed at all, was only casual and temporary.”
The court, in rejecting this argument, stated:
“The exclusion clause in the policy in question is obviously designed to exclude from coverage every type of employer’s liability, other than that arising from ‘domestic employment,’ regardless of whether the employment be regular and continuous or incidental and temporary. The words used make the broad indiscriminate exclusion sufficiently clear. To hold otherwise would be to make a new contract for the parties entirely different from that which they made for themselves.”
I agree that there was error in giving instruction No. 8. We said in Walker v. Countryside Casualty Co., supra, that the following exclusion of coverage was not ambiguous:
“Bodily injury to any employee of the insured arising out of and in the course of (1) domestic employment by the insured, if benefits therefor are in whole or in part either payable or required to be provided under any workmen’s compensation law, or (2) other employment by the insured.”
I find no reason for any rule of construction to be applied either by the court or jury in this case.