This is an appeal on questions of law from a judgment entered in a declaratory judgment action in the Court of Common Pleas of Cuyahoga County in favor of plaintiff, United States Fidelity Guaranty Company, and against defendant, Nationwide Mutual Insurance Company.
Plaintiff issued a comprehensive general automobile liability policy covering any accident for which The Atlas Steel Supply Company, a corporation (hereinafter called "Atlas"), would become legally obligated, and defendant issued a standard automobile combination policy to Ben Madvid, covering accidents arising out of the ownership, maintenance or use of an automobile, a stake truck, for "which the Insured shall become legally obligated." Each carried the usual provision obligating the insurer to defend any suit against the assured brought within the terms of the policy.
It appears further from the record that Ben Madvid filed a tort action in the Court of Common Pleas of Cuyahoga County on June 13, 1956, against Atlas, alleging that he drove his truck on Atlas' premises at its invitation and request for the purpose of selling it scrap and that, after alighting from the truck, he stood nearby while Atlas operated an overhead crane with an electric magnet attachment for the purpose of unloading his truck, and that, when Atlas carelessly and negligently swung a piece of scrap so as to strike him, he sustained personal injuries. He further averred that the control, management and operation of the crane and electric magnet were exclusively in the hands of Atlas and that he was injured and damaged in the sum of $20,000. This cause, No. 685,025, is pending.
Plaintiff in its second amended petition filed in the instant case contends "that it is the defendant's responsibility under the terms of its policy and the defendant contends that it is the plaintiff's responsibility under the terms of its policy to assume the investigation, defense, payment of attorney fees, and any judgment rendered in behalf of Ben Madvid arising out of the lawsuit filed by him" and prays for judgment "determining and *Page 365 declaring the respective rights, obligations and liabilities of the plaintiff and defendant insurance companies under their respective insurance policies."
The trial court decreed that the defendant, Nationwide Mutual Insurance Company (formerly Farm Bureau Mutual Automobile Insurance and Farm Bureau Mutual Fire Insurance Company), was primarily liable under the terms of its contract to provide protection to Atlas, and that Atlas as an omnibus insured under such policy was entitled to the benefits of such policy in the suit of Ben Madvid against Atlas.
Defendant, appellant herein, in its assignments of error, claims that the trial court erred in making a declaration of rights, duties and obligations of the parties in the declaratory judgment action; and, secondly, that the trial court erred in declaring that the defendant had the obligation of extending insurance coverage to Atlas in the tort action.
We shall consider the latter assignment of error first.
The policy issued by the defendant was in the amount of $100,000 for each person, and pertinent parts thereof read:
"V. Purposes of Use Defined.
"(a) The term `pleasure and business' is defined as personal, pleasure, family and business use. (b) The term `commercial' is defined as use principally in the business occupation of the named insured, including occasional use for personal, pleasure, family and other business purposes. (c) Use of the automobilefor the purposes stated includes the loading and unloadingthereof." (Emphasis ours.)
It is claimed in the tort action that Atlas was unloading scrap from Madvid's truck when the accident occurred.
Obviously, Atlas was unloading such scrap with Madvid's permission. Atlas, therefore, at the time of the accident, was not only carrying on an operation within the scope of the "business occupation" of the named insured but was using the automobile for the purposes stated in the policy. Bobier v.National Casualty Co., 143 Ohio St. 215, 54 N.E.2d 798.
"III. 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 *Page 366 while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission. * * *" (Emphasis ours.)
Atlas, while unloading scrap from Madvid's truck, under the clear import of this language came within the definition of an "insured" of this policy.
Moreover, "Coverage F" reads:
"Bodily Injury Liability.
"To pay on behalf of the insured all sums which theinsured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, caused by the accident and arising out of the ownership, maintenance or use of the automobile." (Emphasis ours.)
These provisions are free of any ambiguity. When construed together, they express an undertaking on the part of the defendant to indemnify any person or organization using the truck with the permission and in the business of the named insured against any personal injury claim he or it becomes legally obligated to pay. It would seem, then, that Atlas, coming within the purview of these provisions of the policy issued by the defendant, is covered by it as respects the accident set forth in the petition filed by Ben Madvid.
It is stated in the syllabus of Bobier v. National CasualtyCo., supra (143 Ohio St. 215):
"1. A policy of indemnity insurance is to be construed in the light of the subject matter with which the parties are dealing and the purpose to be accomplished, and the language used must be given its ordinary and commonly accepted meaning."
In the syllabus of Lessak v. Metropolitan Casualty Ins. Co.of New York, 168 Ohio St. 153, 151 N.E.2d 730, it is held:
"2. The sole test as to the duty of an insurance company, under a policy of liability insurance, to defend an action against the insured is the allegations of the petition in the action against the insured, and where such petition brings the action within the coverage of the policy, the insurer is required to make defense, regardless of the ultimate outcome of the action or the liability to the insured. (Socony-Vacuum OilCo. v. Continental Casualty Co., 144 Ohio St. 382, approved and followed.)" *Page 367
It is worthy of note that the United States Fidelity Guaranty policy under its definition of insured excluded insurance to any person or organization other than the named insured when the injured person was the named insured by the use of the following language:
"The insurance with respect to any person or organization other than the named insured does not apply under Division (2) of this insuring agreement: (a) to injury to or sickness, disease or death of any person who is a named insured; * * *" (Emphasis ours.)
The problem, as we see it, was simply one of construction of the policy, and broader language could hardly have been used in the policy. If the insurer desired to place any limitation upon its liability to cover this situation, it had the opportunity to do so, as exemplified by the policy issued by the plaintiff.
Defendant, in order to maintain its position, relies heavily upon the case of Cain v. American Policyholders' Ins. Co.,120 Conn. 645, 183 A. 403. In that case, the policyholder was injured while a passenger in his own automobile which was being driven by a hitchhiker. The policyholder obtained a judgment against the hitchhiker and proceeded against his own liability carrier. The Supreme Court of Errors of the state of Connecticut held that he could not recover. That case is not analogous to the case at bar because it was decided under the law of Massachusetts, in which state there exists a compulsory liability insurance law to which the policy conformed. The syllabus, in paragraph three thereof, succinctly points up this when it states, in part:
"The provisions of the public liability policy, held by the plaintiff as owner of an automobile, conformed to the Massachusetts compulsory liability insurance law, the `Insuring Clause' providing that the insurer `agreed to indemnify' the insured (the plaintiff) `and any person responsible for the operation of the named insured's motor vehicle . . . with his express or implied consent against loss by reason of the liability to pay damages to others for bodily injuries' sustained by any person other than employees of the insured or of such other person responsible as aforesaid, arising out of the ownership and operation of the motor vehicle. * * *" (Emphasis ours.) *Page 368
The Supreme Judicial Court of Massachusetts construed the same provision of the Massachusetts compulsory motor vehicle liability insurance law (G. L. [Ter. Ed.] c. 90, Section 34A etseq.) in the same light in MacBey v. Hartford Accident Indemnity Co., 292 Mass. 105, 197 N.E. 516, 106 A. L. R., 1248.
The courts in other jurisdictions, however, where there are no compulsory liability insurance laws, have construed coverage provisions of automobile liability policies to extend to the claims of a named insured where language within the policy itself does not exclude such a one, in the following cases:
Archer v. General Cas. Co. of Wis., 219 Wis. 100,261 N.W. 9; Howe v. Howe, 87 N. H., 338, 179 A. 362; Bachman v.Independence Ind. Co., 214 Cal. 529, 6 P.2d 943; Union Auto.Ins. Co. v. Samelson, 71 Colo. 479, 207 P. 1113; Hardtner v.Aetna Casualty Surety Co. (La.App.), 189 So. 365; Farmer v.United States Fidelity Guaranty Co., 11 F. Supp., 542; AetnaCasualty Surety Co. v. General Casualty Co., 285 App. Div. 767,140 N. Y. Supp. (2d), 670.
We hold accordingly that Atlas was an insured under the policy issued to Ben Madvid by the defendant and that said policy extended coverage to it in the tort action.
The policy issued by the plaintiff contains the following provision under the heading of "Conditions":
"13. Other Insurance.
"If the insured has other insurance against a loss covered by this policy the company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the declarations bears to the total applicable limit of liability of all valid and collectible insurance against such loss; provided, however, the insuranceunder this policy with respect to loss arising out of the use ofany non-owned automobile shall be excess insurance over anyother valid and collectible insurance available to the insured,either as an insured under a policy applicable with respect tosuch automobile or otherwise." (Emphasis ours.)
The Supreme Court, in Trinity Universal Ins. Co. v.General Accident, Fire Life Assur. Corp., Ltd., 138 Ohio St. 488, 35 N.E.2d 836, states the law applicable where two insurance companies cover the same insured, one a general coverage and *Page 369 the other a specific coverage. In that case, a defendant in a tort action was covered by two insurance policies. One policy, as the policy of the plaintiff in the instant case, was general, and the other, as the policy of the defendant here, was specific. The general policy, as here, limited its coverage to excess insurance where there existed coverage by a specific policy. It was held that under the general rule the specific insurer is primarily liable.
We believe that the principle of law therein pronounced is applicable to the instant case. Atlas, we have determined, was covered by both policies. The plaintiff's policy was general, the defendant's specific. Consequently, the primary liability lay with the defendant to assume the investigation, defense, payment of attorney fees and any judgment rendered in behalf of Ben Madvid arising out of the lawsuit filed by him. Accordingly, we conclude that the trial court was not in error in so ruling.
We, further, overrule the appellant's claim that the trial court erred in declaring the rights of the parties to the action because of the absence of necessary parties and because plaintiff failed to plead or adduce in evidence facts sufficient to constitute a cause of action for declaratory judgment.
Section 2721.12, Revised Code, in part, reads:
"When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration. * * *" (Emphasis ours.)
The controversy was entirely between the two insuring companies. Atlas, in any event, was covered in the tort action. The second amended petition averred nothing which could affect Atlas' basic right under one or the other policy or both to be defended and protected from liability in the tort action brought against it.
In the fourth paragraph of the syllabus of the case ofSchriber Sheet Metal Roofers, Inc., v. Shook, 64 Ohio App. 276, 28 N.E.2d 699, it is stated:
"Section 12102-11, General Code [now Section 2721.12, Revised Code], which provides that in an action for declaratory judgment `all persons shall be made parties who have or claim any interest which would be affected by the declaration,' allows joinder only of those persons legally affected and does not enlarge the procedure as to joinder of parties defendant." *Page 370
See, Firemen's Fund Indemnity Co. v. Shelby Mutual Cas. Co.,95 Ohio App. 88, 117 N.E.2d 477.
It is our opinion that a real controversy existed between the adverse parties in this case which was justiciable in character and which required speedy relief to the preservation of rights that may have been otherwise impaired or lost. Thus, a good cause of action for declaratory judgment was pleaded. Schaefer v.First National Bank, 134 Ohio St. 511, 18 N.E.2d 263;Radaszewski v. Keating, 141 Ohio St. 489, 49 N.E.2d 167;American Life Accident Ins. Co. of Ky. v. Jones, 152 Ohio St. 287, 89 N.E.2d 301, 14 A. L. R. (2d), 815; Driskill v. Cityof Cincinnati, 66 Ohio App. 372, 34 N.E.2d 241.
The judgment is, accordingly, affirmed.
Judgment affirmed.
HURD, P. J., concurs.