dissenting. I am unable to agree with the majority in this case for the same reason that I was unable to agree with the majority in Travelers Ins. Co. v. Buckeye Union Casualty Co., 172 Ohio St. 507.
The annotation (95 A. L. R. 2d 1122) cited in the majority opinion points out that the reasoning advanced in the Travelers case and followed in the instant case has not been accepted in other jurisdictions. The annotation, at page 1125, comments upon Travelers Ins. Co. v. Buckeye Union, supra, as follows:
*64‘ ‘ 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. This seems to be the tenor of at least one decision [citing the Travelers case] in which the term ‘use’ was apparently interpreted differently according to whether the injury was caused by the acts of the insured’s employee or was occasioned by the acts of a third party. This distinction has not been made in other jurisdictions which, without particularly stressing the point, proceed upon the theory that a person loading or unloading a vehicle is automatically deemed to be using the vehicle.” (Emphasis added.)
The policy in question defines its coverage as follows:
“Use of the automobile for the purposes stated includes the loading and unloading thereof.
a # # #
“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 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 added.)
This provision is clear and unambiguous. Any person loading or unloading the automobile with the permission of the named insured is also an insured with respect to the insurance for bodily injury liability.
By its holding, the majority has rewritten the policy to eliminate from coverage one who is expressly made an insured by the terms of the policy.
For the above reasons, I respectfully dissent.