concurring in part, dissenting in part. It seems to me that one must overcome great difficulty in finding an ambiguity to resolve against the insurance company’s policy involved in this case. The coverage clause is recited in the majority opinion, along with the exclusionary clause. The meaning of these clauses is governed by the policy definition of “automobile.” The policy definition is set out in the majority opinion. “Automobile” does not have any meaning other than the policy definition. In order to determine the meaning of the policy, one must substitute the policy definition for the word automobile in both the coverage clause and the exclusion. In doing so, we are concerned with no more than Coverages A and B. We then have the following clauses to consider:
Insuring Agreement:
1. Liability — coverages (A) bodily injury, and (B) property damage.
1. To pay on behalf of the insured all sums except punitive damages which the insured shall become legally obligated to pay as damages:
Coverage A — because of bodily injury sustained by any person, and
Coverage B — because of injury to or destruction of property caused by accident and arising out of ownership, maintenance or use of any land motor vehicle, trailer or semi-trailer designed for travel on public roads (including any machinery or apparatus attached thereto), including loading and unloading thereof.
Exclusions:
This policy does not apply:
(a) Under any of the above coverages for land motor vehicles, trailers or semi-trailers designed for travel on public roads (including any machinery or apparatus attached thereto) owned by the insured.
The definition of “Two or more automobiles” does not affect any question involved here, because, except for limits of liability under Coverages A and B, the terms of the policy apply separately to each at the inception or any renewal date, unless properly described on the declaration and used for the purposes stated.
“Automobile” cannot mean one thing in one clause and another in another. In order to have coverage (A) or (B), the land motor vehicle, trailer or semi-trailer designed for travel on public roads (including any machinery or apparatus attached thereto) must have been properly described on the declaration in the policy.
The low-boy trailer from which the bulldozer fell and caused the damage to Hawksley was not described in the policy. It does not matter whether it was considered as a trailer or apparatus attached to a land motor vehicle. The policy terms still required listing. The bulldozer was not listed either, if that matters. Thus, it is clear that personal property damages were not covered because of the exclusion. It was stipulated that Hawksley sought recovery for $100 in personal property damages from the Goodings. To reach the conclusion reached by the trial court and the majority eliminates the exclusionary clause.
It appears that O. M. Gooding was the owner of the trailer. Insofar as he is concerned, there was no policy coverage for either personal injuries or property damage. It seems, however, that under the terms of the policy, coverage for personal injuries is not limited to those arising out of ownership, maintenance or use of any “automobile.” It would seem, then, that appellant was obligated to defend Ivan I. Gooding and to pay the judgment against him.
I do not agree on appellant’s liability for the 12% penalty. The amount of the liability was not determined or definite until there was a jury verdict on the other phase of the case. The cross-complaint alleged that “if and to the extent Defendants or either of them, are determined to be liable to the Plaintiff, that Southern Farm Bureau Insurance Company is liable over to the Defendants for the full amount of such Judgment up to the policy limits.” The prayer of an amendment to the cross-complaint was for judgment over against Southern Farm Bureau Casualty Insurance Company, “for the full amount of such Judgment up to the policy limits as aforestated, . . . . ” The portion of the judgment fixing liability of appellant is dated May 17, 1977. The judgment against the Goodings was dated June 1, 1977. This was in keeping with what was actually done. In my opinion, this was a declaratory judgment, at least in substance, if not form.