
    R. C. BURSE v. BOH BROTHERS CONSTRUCTION COMPANY, INC. and Collins Thibodeaux.
    No. 7328.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 16, 1976.
    Rehearing Denied April 13, 1976.
    Writ Refused May 26, 1976.
    Garland Rolling, Metairie, for defendant-appellant, Collins Thibodeaux.
    Murphy & Simon, James C. Murphy, Jr., New Orleans, for third-party defendant-ap-pellee, Home Indemnity Co.
    
      Before SAMUEL, REDMANN and SCHOTT, JJ.
   SCHOTT, Judge.

Defendant Collins Thibodeaux has appealed from a summary judgment dismissing the third-party demand he brought against his liability insurer.

The original petition for damages was brought against appellant and his employer based upon allegations of negligence on the part of appellant. The original petition alleged that plaintiff was hauling dirt from a construction project when a dragline bucket was dropped on his truck, that the dragline was being operated by appellant and that the accident was caused by the negligence of appellant in his reckless and careless operation of the dragline. In his answer appellant denied the allegation of the occurrence of the incident for want of sufficient information, categorically denied the allegation of negligence but admitted he was operating the dragline. In response to the motion for summary judgment he did not dispute that the accident occurred in the manner plaintiff alleged in his petition.

Appellant’s insurer denied coverage on the basis of the following exclusions:

“This coverage does not apply:

“(b) To bodily injury or property damage arising out of (1) business pursuits of any insured except activities therein which are ordinarily incident to non-business pursuits . . . ”

Appellant contends that the term “business pursuits” does not include his activities as an employee. He argues that the term implies the ownership of a business by the insured. This same argument was made in Pitre v. Pennsylvania Millers Mutual Insurance Co., 236 So.2d 920 (La.App. 3rd Cir. 1970), and was rejected by the Court. The instant case cannot be distinguished from the cited case, and since we agree with the reasoning and result in the cited case the judgment appealed from is affirmed.

AFFIRMED.

REDMANN, J., dissents.

REDMANN, Judge

(dissenting).

There are three questions.

First. Is every employee’s employment “business pursuits” within the meaning of this “Comprehensive [sic] Personal Insurance” policy ? Within four lines (including three for the exclusion half-quoted by the majority), it refers to “employment”, then “business pursuits”, then “professional services”, just as did the policy in Firestine v. Poverman, 388 F.Supp. 948 (D. Conn.1975), which discussed the issue and decided that a maintenance man’s employment was not “business pursuits”. Pitre v. Pennsylvania Millers Mut. Ins. Co., La. App. 3 Cir. 1970, 236 So.2d 920, which may have involved a similar policy, gives no explanation for following Berry v. Aetna Cas. & S. Co., La.App. 2 Cir. 1969, 221 So. 2d 272, which construed a plainly dissimilar policy on the basis of a definition of “business” not present here. (Our policy defines “business property” by again distinguishing between “business pursuits” and “professional services”, further suggesting that “business pursuits” is understood not to be a catch-all.)

Second. Is every act one does at work a business pursuit? (Jackson v. Lajaunie, La.App. 1 Cir. 1971, 253 So.2d 540 [reversed in part, La., 270 So.2d 859], had reasoned that practical joking at work was not.)

Third. Might there be applicability of the exclusion’s exception from business pursuits of “activities therein which are ordinarily incident to non-business pursuits” ? Jackson v. Lajaunie, La., 1972, 270 So.2d 859, 863, reasoned (in obiter dicta) that an owner’s injury of a customer by practical joke while receiving the customer’s payment on the business premises was within the exception: “Practical jokes are ‘ordinarily incident to non-business pursuits’ and are excepted from the exclusion.”

We know enough to answer the first question, and I dissent from the answer given. We should be agreeing with Fire-stine, rather than uncritically following Pitre, which uncritically followed Berry.

We do not know enough to answer the second and third questions, because there is no hint — nowhere in the entire record— of what the insured was doing that caused the bucket to fall. On these second and third points, the majority position is, apparently, that the allegation the insured was operating the dragline shows both that he was engaged in business pursuits, and that “therein” he was not involved in any activity ordinarily incident to non-business pursuits. For the majority, if he was playing some practical joke while he was (supposed to be?) operating the dragline and the practical joke caused the bucket to fall, it matters not a whit; the practical joke cannot have been an “activity” because operating the dragline was his activity.

The majority view comes perilously close to Davis v. Frederick’s Inc., 1973, 30 Utah 2d 321, 517 P.2d 1014, which refused to apply the exception to the exclusion to a cafe employee’s injury of a passerby by opening a back door to go home from the cafe. Davis effectively erased from the policy the exception to the exclusion.

The Louisiana supreme court’s dicta in Jackson assert that the exception has meaning. We should apply the exception and set aside the summary judgment because granted without showing, as required by C.C.P. 966, that mover is entitled to judgment as a matter of law.  