
    Trzich v. United States Casualty Co.
    (Decided July 23, 1935.)
    
      Mr. L. L. George and Mr. Homer Carlyle, for plaintiff in error.
    
      Mr. Wm. E. Pfau, for defendant in error.
   Guernsey, J.

This is an error proceeding from the Common Pleas Court of Mahoning county. The parties will be hereinafter referred to as they appeared in the trial court, the order of the parties not being changed by this error proceeding.

The facts as shown by the bill of exceptions are as follows:

The United States Casualty Company had issued an ordinary policy of liability insurance to The Jost Tire & Service Company of Akron, Ohio. The Jost Tire & Service’ Company was the agent for Firestone Tires and conducted a service station in Akron.

James McClintock was an employee of The Jost Tire & Service Company as a service man. The business of the company was confined to the city of Akron and the territory immediately around the city. McClintock lived some four or five miles from the place of business of The Jost Tire & Service Company, and for two or three years prior to the day of the accident had been permitted to drive one of the company’s trucks to and from his work, keeping the truck at night-in the garage in the rear of his home. He was subject to call for service at any time, either by day or night. When he drove home Saturday nights, he kept the truck in the garage over Sunday. If called out during the night, or while not on duty, he used the truck for the same purposes. He had been told by his employer not to use the truck for the purpose of running around, and he had never so used it before the time of the accident.

On Sunday morning preceding the day of the accident he quit work at noon and returned to his home, and some time during the afternoon decided to go to Youngstown to see a young lady who was employed in that city. He drove from his home to Youngstown in the truck belonging to The Jost Tire & Service Company, which he had used in driving from his place of work to his home, and while at Youngstown visited with the young lady above mentioned and other company until early in the morning, and between five and six o’clock of the following day he started back to Akron in the truck alone, intending to go to his home, change his clothes, and go on to work, where he was due at seven-thirty a. m. Near Austintown, a few miles west of Youngstown, and before arriving at his home, he had an accident involving personal injuries to the plaintiff Mike Trzich.

Trzich filed suit against The Jost Tire & Service Company, and failed for inability to show any evidence of agency on the part of McClintock for the service company. Suit was then brought against the driver, McClintock, and a judgment was obtained against him for five thousand dollars.

This action was then brought against the United States Casualty Company by virtue of the provisions of Sections 9510-3 and 9510-4, of the General Code, in an endeavor to enforce against the United States Casualty Company payment of plaintiff’s judgment against McClintock.

As above stated, at the time the accident occurred, McClintock did not have the permission or consent of The Jost Tire & Service Company, the named assured, to operate the automobile, and the service company had no knowledge of his operation of the car at the time mentioned, and had specifically instructed Mc-Clintock not to operate the particular automobile of the company for his own pleasure.

The policy of insurance was a standard form of liability insurance, insuring as the named assured The Jost Tire & Service Company, and contained a coverage clause, which for want of a better name will be designated as an omnibus clause, similar to omnibus coverage clauses in other forms of policies in general use.

So far as is material to the questions in this case, the omnibus clause referred to provides as follows:

“The unqualified word ‘Assured’ includes not only the Named Assured but any other person, firm, corporation or association while legally using any such automobile, including also any other person, firm, corporation or association legally responsible for the use thereof, provided the disclosed and actual use of such automobile is ‘Pleasure and Business/ or ‘Commercial/ each as defined herein, and further provided that such use is with the permission of the Named Assured, who, if an individual, may give such permission through an adult member of his household other than a chauffeur or domestic servant; except that no coverage shall be extended hereby to any person, firm, corporation or association operating an automobile repair shop, public garage, sales agency, or service station or to any agent or employee thereof as respects any accident due directly or indirectly to the operation thereof, and except that the terms of this clause shall not apply to any automobile designed, used, rented, or leased for the carrying of passengers for a consideration. Insurance provided under these Agreements shall be applied first to the protection of the Named Assured and the remainder to any other Assured.”

At the close of all the evidence, the trial court, on motion of the defendant, United States Casualty Company, directed a verdict for defendant. The plaintiff thereupon filed a motion for judgment in his favor upon the agreed and stipulated facts in the record, and upon the pleadings, notwithstanding the general verdict so directed by the court. The plaintiff also filed a written motion for new trial, both of which motions were overruled, and the court below then rendered final judgment for the defendant.

This proceeding in error is brought here for the purpose of reversing the judgment of the Common Pleas Court and having this court render final judgment in favor of the plaintiff in error; or, in the event such final judgment is not rendered, of having the case remanded to the Court of Common Pleas for a new trial.

It is contended by the plaintiff in error that the omnibus provision of the policy above set forth extended coverage, even in the absence of the permission of'the named assured, to “any other person, firm, corporation or association while legally using any such automobile,” and that the phrase in the omnibus provision, “provided that such use is with the permission of the named assured,” applies only to the clause in the omnibus coverage immediately preceding, it, and not to the entire part of the paragraph preceding it with reference to extension of coverage to others than the named assured. If plaintiff’s contention in this respect is correct the plaintiff is entitled to recover in this action notwithstanding the fact that the evidence shows that McClintock at the time of the collision between the car driven by him and the plaintiff was operating the automobile of The Jost Tire & Service Company without the permission of the company.

From an inspection of the omnibus clause referred to it will be noted that the clause, “including also any other person, firm, corporation or association legally responsible for the use thereof,” is an amplification by way of definition of the preceding clause, “any other person, firm, corporation or association while legally using any such automobile,” and that the two clauses read together determine the class of persons to whom the coverage is extended. The provisos, following the words “legally responsible for the use thereof,” apply to the first above-quoted clause, as amplified by the second above-quoted clause, and the coverage is extended to persons other than the named assured only in the event that the disclosed and actual use of such automobile is “pleasure and business,” or “commercial,” as defined in the policy, and in the further event that such use is with the permission of the named assured.

In our opinion the terms of the policy in this respect are plain and explicit, and the meaning is clear and free from doubt and needs no construction.

This holding is in accordance with the general rule stated in 72 A. L. R., 1387, second paragraph, as follows:

“In many of the clauses, as appears from the foregoing, the words relating to permission or consent are somewhat removed from the descriptive words, ‘riding in,’ ‘operating,’ etc. Yet, in all cases involving the operation of the clause with respect to a person ‘riding in,’ the car, or to a person ‘operating’ the car, as the case may he, the words relating to permission or consent have been regarded applicable to such person.”

“Under a clause of this character, to entitle one other than the named assured to indemnity on account of an accident in which the car was involved, the use or operation of the car at the time of such accident must have been with the ‘permission’ (‘or consent’) of the named assured, etc., within the meaning and intent of the clause.”

As for the reasons mentioned the coverage of the policy did not extend to McClintock in his operation of the car without the permission of the named assured, the trial court properly directed the verdict in favor of the defendant casualty company, and properly overruled plaintiff’s motion for judgment notwithstanding the verdict.

The judgment, therefore, will be affirmed at the costs of the plaintiff in error.

Judgment affirmed.

Klinger, J., concurs.

Judges Klinger and Guernsey, of the Third Appellate District, sitting by designation in the Seventh Appellate District.  