Clapp, Jayne and Francis. The opinion of the court was delivered by Jayne, J.A.D.
While the sole inquiry addressed to us for determination is whether the claim asserted by the plaintiff is embraced or excluded by the terms of the insurance policy issued to it by the defendant, some brief informational introduction is appropriate.
On the afternoon of October 21, 1952 a motor truck owned by the plaintiff and loaded with cement blocks was parked on a backward incline at the west end of the Mid-Hudson Warehouse situate on Pavonia Avenue in Jersey City. It was being unloaded by the employees of the plaintiff, among whom was one William Jussell. During the course of this occupation the truck unexpectedly moved backward crushing Jussell between the tailboard of the truck and the warehouse platform.
Jussell thereafter instituted an action against the present plaintiff, Erie Railroad Company, under the provisions of the Federal Employers Liability Act, 45 U.S.C.A. § 51 et seq. , to recover compensatory damages for the bodily injuries he sustained in the mishap. Ensuing negotiations effectuated a settlement of the action on January 14, 1954 by the payment by Erie of the sum of $13,000 to Jussell.
Prior to the occurrence of the mishap the defendant had issued to the present plaintiff a policy of a type commonly known as an automobile liability policy relating to the ownership and use of the truck, pursuant to the terms of which the plaintiff notified the defendant of the happening of the mishap and subsequently of the institution of the action by Jussell. In response the defendant informed the plaintiff that indemnification for the liability of the plaintiff to Jussell in such circumstances was expressly excluded by the limitational terms of the policy.
This action was instituted on April 9, 1954 to recover from the defendant the $13,000 with interest previously paid by the plaintiff in settlement of Jussell's cause of action. On January 13, 1955 a summary judgment in favor of the defendant was entered, from which the plaintiff appeals.
Noticeably the policy in coverage designated "A" purports to obligate the defendant to pay all sums which the insured "shall become legally obligated to pay as damages because of bodily injury * * * sustained by any person, and arising out of the ownership, maintenance or use of any automobile, including the loading and unloading thereof * * *."
Evident also are the following exclusionary provisions which declare that the policy does not apply:
"(f) * * * to any obligation for which the insured or any company as his insurer may be held liable under any workmen's compensation law;
(g) * * * to bodily injury to * * * any employee of the insured while engaged in the employment, other than domestic, of the insured or in domestic employment if benefits therefor are either payable or required * * * under any workmen's compensation law."
After an observant comparison of the quoted exclusions, our attention centers more aptly on the latter designated (g).
It is acknowledged that Jussell was an employee of the insured and that he suffered his bodily injury while engaged in the pursuit of his employment. It is likewise conceded that Jussell was ...