I concur in that part of the opinion finding that the policy of Royal Indemnity Insurance Company does not extend coverage to Zum or Zum's washboy — in the absence of facts that Zum or the plaintiff in the pending or contemplated tort actions can supply. It should be clearly understood that since they are not parties to this action they are in no respect bound by the decision in the event, upon judgment, a supplemental petition were to be filed.
Coverage depends upon the concurrence of two elements specified in each policy:
1. Definition of Hazards
"Ownership, maintenance or use of an automobile in connection *Page 436 with the above defined operations" (viz, automobile sales agency).
2. Definition of Insured
"Any person while using an automobile covered by this policy, and any person legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission."
In this case ownership is a factor as to Connell because, by the sweeping language of Section 4505.04, Revised Code, ownership was securely fastened on Connell for all purposes, however unrealistic this may seem. But ownership constituted only half the requisite for coverage and, as the majority opinion points out, lack of permissive use eliminates Zum or his washboy as an addiitonal assured under the policy.
I cannot agree with the statement that Brewer v. DeCant,167 Ohio St. 411, requires the finding that coverage exists for Green's insurer, Columbia Casualty Company, or with the preliminary conclusion that the factual and policy situations here are not distinguishable from Brewer v. DeCant, except that the vendee of Green happened to be another dealer.
The first essential to coverage is "ownership, maintenance or use in connection with an automobile sales agency." As to this facet, the court in Brewer v. DeCant was very careful to limit the first paragraph of its syllabus to the following:
"A provision in a standard garage liability insurance policy, issued to an automobile dealer, defining as one of the hazards covered the `use of any automobile in connection with the * * * operations' of an automobile dealer extends to an automobile repossessed by a finance company and placed in the custody of such dealer for resale, even though the certificate of title thereto remains in the name of the person from whom the automobile was repossessed."
This restricts its statement to the very limited class of sales before it in that case, and so do many of the exceedingly careful and guarded statements in Judge Bell's opinion. It is to be noted that in Brewer v. DeCant the sale was to one whom Section 4505.06, Revised Code, identifies as a general purchaser or user, not to another dealer.
I can agree that the delivery of possession of an automobile under agreement to sell, with concomitant receipt of the *Page 437 entire purchase price of the sale, constitutes a use of the automobile in connection with the operations of an automobile sales agency. I do not perceive, however, that a subsequent user by the purchaser, in accordance with his own wishes, for his own purposes, and at his own discretion, particularly by a competing sales agency, necessarily or even logically, becomes a use in connection with the vendor's operations.
There are many reasons why this result may be argued in individual and specialized cases:
First: Since the need for a still undelivered certificate of title will bring the purchaser back to vendor's place of business he becomes a prospect for future sales, or for servicing on his car. This could well have been true in Brewer v. DeCant or inUnited States Fidelity Guaranty Co. v. Trussell (W. D. Virginia), 208 F. Supp., 154, which follows and comments on it. It was certainly true in Farm Bureau Mutual Automobile InsuranceCo. v. Motorists Mutual Insurance Company, 110 Ohio App. 12. Since Zum was a competitor of Green's and purchased the car through auction it is scarcely true in the instant case.
Second: Having the purchaser required to come back for a certificate of title will aid in the collection of any balance of purchase price due. This factor is recognized in RandallInsurance Agency, Inc., v. Burns, 115 Ohio App. 397, 93 A.L.R. (2d), 1041 (coverage denied on other grounds), and inAllstate Insurance Co. v. Hartford Accident Indemnity Co. (Missouri App.), 311 S.W.2d 41, but is scarcely a factor where, as here, the entire purchase price was paid prior to the vendee's accident-resulting use.
Third: The prompt sale and remission of purchase price to the one who (as prior vendor or principal) placed the car in the vendor's hands, without waiting for formalities of title documents, is simply good public relations and will aid in securing further profitable business from the same source. This reason was more than hinted at in Brewer v. DeCant and UnitedStates Fidelity Guaranty Co. v. Trussell, supra, both of which cases involved doing business for a repossessing finance company which had taken credit paper from the vendor on previous sales of the same cars which were delivered to vendees. Certainly this reason has no application to the present factual situation. *Page 438
Fourth: The law should presume that use by the purchaser is in the interest of the vendor, even if this is contrary to fact, in order to coerce the vendor into making immediate delivery of title documents, and to punish him by imposing vicarious tort liability if he does not. I would be quite sympathetic with this argument if imposition of such liability on Green were sought, but such is not the case. There is no attempt to make Green liable; on the factual situation presented Green would escape liability in any event. See United States Fidelity GuarantyCo. v. Trussell, supra; Eggerding v. Bicknell, 20 N.J. 106,118 A.2d 820. Just how the law coerces Green by letting him escape liability and imposing it, instead, on his liability carrier through the device of creating an additional assured in Green's policy is, to me, unexplained.
Fifth: It may also be argued that putting a purchaser in possession and collecting the money before delivery of title documents serves the vendor's business by enabling him to pay his own vendor. It is all too apparent that this is what happened in the rather scaly and shoestring operation of Green's. But this purpose ended with delivery and receipt of money. The use of the automobile thereafter was of no interest, concern or advantage to Green.
Sixth: Finally it might be argued that after the purchase and delivery of the car it would be impossible for the purchaser legally to use the vehicle, since registration in his name without title documents is impossible, and, therefore, to drive it he would have to use the vendor's license plates. This is the theory of a line of cases outside Ohio which so determines vendor's use or fixes the consequences of ownership on him by way of estoppel. Switzer, Admx., v. Merchants Mutual Casualty Co.,2 N. Y. (2d), 575, 141 N.E.2d 904; Reese v. Reamore,292 N.Y., 292, 55 N.E.2d 35; Eggerding v. Bicknell, supra. Conceivably at one time this argument might have been valid in a limited number of car sale situations in Ohio, but with the enactment of Section 4503.182, Revised Code, which permits the obtaining of temporary registration by the purchaser without title documents, it has now lost validity. In any event, in this case Zum could always cover the automobile in question into his own dealer's plates, for ownership is not required *Page 439 in such case, only lawful possession. Section 4505.30, Revised Code.
Many of the foregoing reasons for holding that the purchaser's operation constitutes the vendor's use in connection with his business could be argued with effect where there was a sale of a repossessed car, or any car, to a general user. In the instant case, where the sale was to another dealer, through the medium of a used car auction, with purchase price fully paid, they utterly lack persuasiveness. Conceding the soundness of public policy which underlies the decision in Brewer v. DeCant, as applied to the facts therein, there appears no reason why its doctrine should be stretched to cover the factual situation in the instant case.
It may be conceded that, under the third paragraph of the syllabus in Brewer v. DeCant, Zum's use of the automobile was with Green's permission (so far as Green had power to give it). But permission alone is insufficient; it does not establish use in connection with Green's business. Ownership was concededly not in Green's name, and the first requisite for coverage by Columbia Casualty fails.