Wiley v. Travelers Insurance Company

1974 OK 147, 534 P.2d 1293

• Court: Supreme Court of Oklahoma
• Decided: November 19, 1974
• Docket: 46374
• Status: Published

Opinions

LAVENDER, Justice:

The appellees, Wayne and Rose Wiley (Wileys), obtained judgment against Geibe (homeowner) for $7,724.85 in a personal injury action. Rose Wiley had been attacked.and injured by one of homeowner’s dogs at the Geibe residence while there in response to a classified ad and in anticipation of purchasing a St. Bernard puppy.

The appellant, Travelers Insurance Company (insurer), had issued to the homeowner Geibe a homeowner’s insurance policy. The judgment creditors, Wileys, sought garnishment against the insurer as garnishee under the homeowner’s insurance to collect the judgment. Insurer denied coverage under an exclusion clause as to “business pursuits” in the policy.

We hold the homeowner Geibe by breeding, raising, and selling St. Bernard puppies was engaged in a business pursuit under the homeowner’s policy. That activity of the homeowner is included under the exclusion clause as to business pursuits. There is no coverage under the policy in this garnishment action as to the garnishee insurer.

The policy contains an exclusion as to personal liability insurance and personal medical payments ¹. It provides that kind of coverage shall not apply “to bodily injury or property damage arising out of business pursuits of an Insured except activities therein which are ordinarily incident to non-business pursuits; but this exclusion does not apply to the occasional or part-time business pursuits of any Insured who is a student under 18 years of age.”

Homeowner Geibe held a job as a salesman. He traveled five days a week and earned in excess of $10,000 a year from that endeavor. Argument is made the part-time aspect of the dog operation prevents it from being a business pursuit. We think not.

Under General Conditions of the policy “business” is defined as “meaning a trade, profession or occupation * * We would agree the word “pursuit,” as used in the exclusion, has only its ordinary understood sense, i. e. to go after, seek, chase, strive for, or engage in an avocation, hobby or the like. The American Heritage Dictionary 1062 (1973). “Engaging in an occupation” as a meaning for “business pursuits” used in the exclusion does not mean sole occupation or sole trade.

The exclusion uses the language “arising out of business pursuits * * * except activities which are ordinarily incident to non-business pursuits; * * Use of the plural as to pursuits and activities negates any meaning as to sole or principal occupation or trade.

The exclusion has an exclusion. Occasional or part-time business pursuits of a student not 18 years old is expressly excluded from the exclusion. All other occasional or part-time business pursuits are under the exclusion of coverage.

An effort is made to distinguish between a hobby and a business pursuit. A business pursuit is denoted as “what one does for a living.” A hobby is called “what one does for pleasure.” We believe this distinction is artificial. One’s livelihood may be, and hopefully is, one’s greatest pleasure.

Can a hobby be a business pursuit? We believe the addition of a profit motive to an activity makes it a business pursuit. Insurer in its brief says the “addition of profit motive is all that is necessary to make an activity both a hobby and a business pursuit. We agree. Wileys, in their brief, cite Kelley v. United States, 202 F.2d 838, 841 (C.C.A. 10th, 1953) as defining business, saying:

“ ‘Business’ is a comprehensive term. It has been defined as that which ‘occupies the time, attention and labor of men for the purpose of a livelihood or profit.’ ”

In a business pursuit the profit motive, or purpose of a profit, is important. Whether there is or is not actual profit is immaterial. Does a pursuit have to be successful from a profit standpoint before it is a business pursuit? If a business suffers a loss, was it not a business? The answers are obvious. Profit motive, not actual profit, makes a pursuit a business pursuit.

Dr. G., a veterinarian, testified:

“Q. Do you know the purposes of Mr. Geibe keeping these dogs ?

A. Mr. Geibe, whom I became very close to and had a number of visits with, stated specifically to me that it was his lifelong ambition to raise Saint Bernards and he intended to retire raising them.

Q. Do you know whether or not Mr. Geibe sold Saint Bernard dogs?

A. Yes, Sir, for a very good fee.”

Evidence indicated Geibe, the homeowner, sold puppies for $300 each; others for as little as $75. He gave some away. Geibe’s barn had been extensively renovated as a kennel. He extensively fenced his yard. He advertised his puppies by running classified ads in the newspaper and by erecting a large sign of a St. Bernard dog in his yard with the word “Puppies” underneath. The case at bar was not the family pet litter sale. It was something more. Geibe, in his dog operation, was engaged in a “business pursuit.” That activity was excluded from coverage under his homeowner’s policy. The object to be accomplished by the homeowner’s policy was to insure a home and not a business.

This appeal is limited in scope to the action in garnishment, a special proceeding. The judgment in the negligence action is not affected except for its enforcement in garnishment under the homeowner policy. The interpretation of the policy, with its exclusion is a law question. It is not a fact issue. In the case at bar, the facts necessary to apply the decided law question are not in dispute so as to require the weighing of evieence.

Certain rules already established in Oklahoma jurisprudence were used in resolving the issues of this case. In construing an insurance contract, its terms and words, if unambiguous, must be accepted in their plain, ordinary and popular sense. Penley v. Gulf Ins. Co., Okl., 414 P.2d 305 (1966). Parties to insurance contract are at liberty to contract for insurance to cover such risks as they see fit and are bound by terms of contract and courts will not undertake to rewrite terms thereof. The construction of an insurance policy should be a natural and reasonable one, fairly construed to effectuate its purpose, and viewed in the light of common sense so as not to bring about an absurd result. American Iron & Mach. Works Co. v. Insurance Co. of North America, Okl., 375 P.2d 873 (1962). Insurance contracts are to be liberally construed in favor of object to be accomplished. American Motorist Ins. Co. v. Biggs, Okl., 380 P.2d 950 (1963). A policy of insurance is a contract and should be construed as every other contract, that is, where not ambiguous, according to its terms. An insurance company may limit the risk for which it is responsible. C. P. A. Co. v. Jones, Okl., 263 P.2d 731 (1953).

The decision of the Court of Appeals is revesed. The judgment of the trial court is reversed and the case is remanded with directions to enter judgment for defendant.

DAVISON, C. J., WILLIAMS, V. C. J., and SIMMS and DOOLIN, JJ., concur. IRWIN, BERRY, HODGES and BARNES, JJ., dissent.

1 . Policy is described as a THO 2 form; it contained “Coverage E — Personal Liability Insurance” and “Coverage P — Personal Medical Payment.”