# Elliott v. Behner

> Supreme Court of Kansas · December 9, 1939 · 150 Kan. 876

URL: https://www.frixlaw.com/law-library/cases/7914717

## Case

- **Full name:** Mabel Elliott, and v. Ed Behner, Employers Casualty Company of Dallas, Texas, Garnishee
- **Court:** Supreme Court of Kansas
- **Decided:** December 9, 1939
- **Citations:** 150 Kan. 876; 96 P.2d 852; 1939 Kan. LEXIS 222
- **Precedential status:** Published
- **Opinion:** Dissent by Thiele
- **Judges:** Smith, Thiele, Wedell
- **Cited by:** 40 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7914717

## Opinion text

Thiele, J.
(dissenting): I cannot agree with the conclusion reached in the court’s opinion. While it is true that one endorsement on the policy indicated the truck might be used for business or pleasure, it seems to me to be beyond dispute that a county may not have a truck for pleasure purposes. In any event, it is clear the truck was being used in the county’s business and for commercial purposes at the time the accident occurred as a result of which Elliott lost his life. As I see it, that use determined application of the terms of the policy. One portion of that policy dealt with “exclusions,” and specifically stated that unless otherwise provided by agreement in writing the company would not be liable for loss or damage, in the following:
“(g) Under agreement A for injury to any passenger, while in the automobile described in the declaration as ‘commercial’ if- used for passenger carrying purposes, regardless of whether a consideration is charged for- the carrying of such passengers.”
There is nothing ambiguous about that language, either in itself or considered with the context of the policy. Certainly Elliott was a passenger on the truck and whether he paid any consideration for riding was immaterial. Just as certainly Elliott was not riding for pleasure but was availing himself of a means of transportation furnished for his use in going to and returning from his work. Under the plain terms of the exclusion clause the company was not liable.
Wedell, J., joins in this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7914717. Public record. Not legal advice.