Buckeye Union Casualty Co. v. Illinois National Ins.

Bbown, J. The two cases are in conflict, and the certification would require this court to resolve this conflict were it not for the case of Travelers Ins. Co. v. Buckeye Union Casualty Co., 172 Ohio St. 507. The court, however, is of the opinion that its decision in that case is dispositive of the question of liability of Illinois under the facts claimed in the petition. In an annotation to the case of Travelers Ins. Co. v. Buckeye Union Casualty Co., supra, in 95 A. L. R. 2d 1123, the following language occurs: “However, where the injury is caused by a third party who has no legal relationship to the named insured it may be necessary to prove, before the liability provisions of the policy become applicable, that such third party was in the actual use of the truck at the time of the injury, with the express or implied permission of the named insured. * * * And while it is much too early to say whether the doctrine as laid down in the Ohio ease will spread to other jurisdictions, the fact remains that such a distinction has been suggested to and been accepted by the highest court in Ohio.” The language of paragraphs three and four of the syllabus of Travelers Ins. Co. v. Buckeye Union Casualty Co., supra, is as follows: “3. Where an injury is caused by the claimed negligence of a third party who is not connected with the truck, who has no legal relationship to the named insured and who under normal circumstances would not be using the truck of the named insured, it must first appear, before the liability provisions of the policy become applicable, that such third party was in the actual use of the truck at the time of the injury, with the express or implied permission of the named insured. “4. ‘Loading’ and ‘unloading’ are but component parts of the overall ‘use’ contemplated by such an insurance contract and do not therefore become determinative of the question of liability unless or until the party charged with negligence is shown to have been actually using the truck so as to qualify as an ‘insured’ within the definition of that term as used in the policy.” The provision in the subject standard automobile policy [63] that “the purposes for which the automobile is to he used are ‘pleasure and business’ * # * use of the automobile for the purposes stated includes the loading and unloading thereof” enlarges the meaning of the word, “use,” when one is attempting to determine whether the car is being “used for pleasure and business. ’ ’ This enlargement of the meaning of the word, “use,” for the purpose stated does not enlarge the meaning for the purpose of defining an insured in the following policy provision: “Definition of Insured “With respect to the insurance for bodily injury liability and for property damage liability the unqualified word ‘insured’ includes the named insured and also includes any person while using the automobile * * * provided the actual use is by the named insured or with his permission. ’’ (Emphasis added.) The operation of loading and unloading is covered, but the loader or unloader is not “an insured” unless otherwise made so. The action to be defended by Illinois must be against an insured of Illinois. Under this holding, we can never arrive at a finding that an insured may be a claimant against a company which has computed a risk to protect the insured only against the claims of others. The judgment of the Court of Appeals is, therefore, affirmed. Judgment affirmed. Taft, C. J., Zimmeemaft, O’Neill, HerbeRt and Schfteider, JJ., concur.