course of his employment, and hence would not be compensable under the Workmen's Compensation Act and the first insuring clause of the policy. In defining the type of injury insured against, the Court said (at page 727):
'It is sufficient, we think, if it can be said that the injury resulted from a hazard reasonably incident to or in some way casually connected with her employment. * * *'
In holding that the injury was one which was subject to the policy coverage, the Court said of the employee (at page 727):
'* * * it is decisively clear that she had not departed from the premises where she was employed and that the hazard to which she was subjected and which brought about her injury was incident to and reasonably associated with her status as one 'legally employed'.'
Paragraph 6 of the policy in the Gilt Edge Dairy case, as appears from the record on appeal, was identical with Paragraph 6 of the policy now in litigation, although Paragraph 6 was not mentioned in the opinion. The Court considered Boyle-Farrell Land Co. v. Standard Acc. Ins. Co., supra, but stated that it was distinguishable upon its facts (218 F.2d at page 727).
Basically, the Gilt Edge Dairy decision turned upon the Court's view that the injured person was encompassed within the policy phrase 'such employees as are legally employed'. While Paragraph 1.(b) of the policy in suit, prior to its amendment, was identical with the comparable clause before the Court in the Gilt Edge Dairy case, the words 'as are legally employed' were dropped out of Paragraph 1.(b) when the amendatory endorsement was added to the policy. For present purposes, however, the change is inconsequential. If at the time of the accident in the Gilt Edge Dairy case the injured employee was 'legally employed' within the meaning of that policy, as the Court held that she was, then at the time when Morton was injured he was an 'employee' within the meaning of the policy in suit.
Furthermore, it is reasonable to conclude that had the employer-employee relationship not existed between plaintiff and Mortion, the latter would not have been an 'invitee' riding upon plaintiff's truck and the injury would not have occurred. In this sense, Morton's injury, in the language of the Gilt Edge Dairy opinion, resulted 'from a hazard reasonably incident to * * * (his) employment' (218 F.2d at page 727).
Finally, were the question more doubtful than it appears to be, an interpretation of the policy in favor of the indemnification sought by plaintiff would be justified under the principle that when the language of a policy is doubtful or obscure, it will be construed against the insurer. Frick v. United Firemen's Ins. Co., 1907, 218 Pa. 409, 67 A. 743, 746; Rathblott v. Royal Indemnity Co., 1933, 310 Pa. 37, 164 A. 718, 719; Blue Anchor Overall Co. v. Pennsylvania Lumbermens Mutual Ins. Co., 1956, 385 Pa. 394, 123 A.2d 413, 59 A.L.R.2d 546.
Obligation to Defend
Morton's complaint made no reference to his status as an employee. So far as his complaint disclosed he was simply a member of the public who was riding in the plaintiff's truck. However, the answer filed by plaintiff alleged that when Morton was injured, he was employed by plaintiff. And the defendant in the instant action admits that plaintiff kept defendant's representatives fully and promptly informed of all developments in connection with Morton's claim. So that there can be no doubt that the defendant knew that Morton's suit against plaintiff was, at least according to plaintiff's version, 'on account of' an injury to an employee. Moreover, in the instant action defendant has conceded that Morton was in plaintiff's employ on the date of the injury, and has requested that this be found as a fact.
Under the policy in suit the defendant agrees 'as respects personal injuries sustained by employees':
'3. To defend, in the name and on behalf of this Employer, and suits or other proceedings which may at any time be instituted against him on account of such injuries, including suits or other proceedings alleging such injuries and demanding damages or compensation therefor, although such suits, other proceedings, allegations or demands are wholly groundless, false or fraudulent.
'4. To pay all costs taxed against this Employer in any legal proceeding defended by the Company, all interest accruing after entry of judgment and all expenses incurred by the Company for investigation, negotiation or defense.'
By Paragraph 3 defendant has thus undertaken to defend on plaintiff's behalf 'any suits * * * instituted against (it) on account' of personal injuries sustained by 'employees'. Although the policy states that this obligation includes the defense of suits 'alleging' injuries to employees, the duty to defend is not limited to instances where the employment relationship is alleged. It comprehends the defense of any suit instituted 'on account of' an employee's injury regardless of whether the employment relationship is alleged. The Morton suit was within this category.
It is clear, therefore, that the defendant was obligated to defend the Morton action.
Wilson v. Maryland Cas. Co., 1954, 377 Pa. 588, 105 A.2d 304, 50 A.L.R.2d 449, does not require a different conclusion. There the Court held that a 'defense' clause which required the insurance company only to defend suits 'alleging' injuries insured against created no duty to defend when the complaint affirmatively alleged an injury which was not insured against.
The policy terms are unlike those here under consideration. The decision is therefore inapposite.
For the foregoing reasons plaintiff is entitled to a judgment against defendant in the amount of $ 3,979 with interest thereon from July 19, 1957 to the date when the judgment is entered.
The findings of fact and conclusions of law required by Rule 52(a), 28 U.S.C., are stated in this opinion.
Counsel for plaintiff is requested to submit a judgment in accordance with this opinion.