Red Ball Motor Freight, Inc. v. Employers Mut. Liability Ins. Co. Of Wisconsin

RUSSELL, Circuit Judge

(dissenting).

Where a policy of automobile liability insurance provides for liability for damage arising out of the “use” of the designated automobile, and defines “use” as “including the loading and unloading of the automobile,” I have no quarrel with the principle-of the “complete operation theory” which the decision in American Employers Ins. Co. v. Brock, Tex.Civ.App., 215 S.W.2d 370, so well announces and adopts as the law of Texas. However, even though the question of “loading and unloading” is not involved in this case, as is recognized by the majority, the effect of the present holding is to apply the “complete operation theory” to the-“use” of the automobile. I think the analogy is inapt. Where “use” is defined as including “loading and unloading” there is an extension of coverage to transactions- and occurrences which properly can be held to contemplate acts and conduct beyond the use of the automobile merely as a. vehicle. But the term “use” without the enlarging endorsement is so restricted to-the vehicle. It seems to me that the overlooking of this difference induces error in this case. Thus the application of the principle of the Brock case, supra, in the present case, results in the announcement of the theory, in effect, that acts done “in preparation for use” should be treated as. within the coverage of the policy. The holding that all acts which are necessary to the use of the covered automobile are so immediately connected as that accidents arising from them in law arise out of use of the automobile involves a concept which, I submit, is not authorized by the policy. Limitation of the application of such a theory within any reasonable bound will prove extremely difficult, if not impossible. Stated another way, “loading and unload*379ing” refer to cargo and articles and thus broaden the coverage of the policy. On the other hand, “use” of the automobile reasonably and fairly contemplates only its operation as a vehicle. In this sense there is no ambiguity in the term “use.” In order to cover a situation similar to that now held analogous to loading and unloading I should think the policy must contain words similar in meaning to “preparation for use.” Only then would the negligent act now in question1 be subject to the application of the principle of the “loading and unloading” cases which are referred to in the opinion of the majority.

I would affirm the judgment of the trial Court.

. It should be borne in mind that this was in effect one degree removed from even refueling since the operation of the defective valve was essentially only a means of replenishing the supply in the tank from which refueling was accomplished.