dissenting:
The defendants ignore that portion of Section 1 which provides that Part 1 does not apply to a non-owned automobile while used in an automobile business by the insured. The policy must be construed as a whole. All the terms must he considered and read together. This is clearly a limitation to Part 1 of the policy and explicitly excludes coverage for incidents involving a nonowned automobile while used by the insured in an automobile business. These words in the policy qualify and limit the policy obligations of plaintiff under Part 1 of Section 1. Skawinski was using a nonowned automobile in an automobile business and is, therefore, excluded from a liability protection. The defendants rely on cases in which the word maintenance is defined. Only in the case of Morris v. American Liability and Surety Co., 322 Pa 91, 185 Atl 201, was the term maintenance defined as it appears in a policy of automobile liability insurance. None of the other cases cited by defendants involve automobile insurance. The Morris case is not in point. The construction of a clause excluding coverage to a nonowned automobile while used in an automobile business was not an issue in that case.
The automobile business in which Skawinski was engaged was that of repairing automobiles. There is no use to which an automobile can be put that is more fundamental to such a business than that of repairing it. There are numerous cases interpreting the phrase “use” in automobile insurance policies. In Red Ball Motor Freight v. Employers Mut. Liability Ins. Co., 189 F2d 374, the Employers Mutual Liability Insurance Company insured Red Ball Motor Freight for damages “caused by accident and arising out of the ownership, maintenance or use of the automobile.” After fueling a truck belonging to Red Ball, the driver did not completely close the valve on the gas pump. Gasoline escaped and an explosion resulted one hour later, at which time the truck was miles from the premises. The insurer refused to defend the claim against the insured for the reason that the accident did not arise out of the “use” of the truck. The court, in holding that the insurer was obliged to defend tbe insured, did not confine itself to the loading and unloading clause but, relied specifically upon the term “use,” noting that the situation may not have been strictly a loading operation but was, in fact, a use of the truck. In Federal Insurance Co. v. Michigan Mut. Liability Co., 277 F2d 442, the policy of Michigan Mutual contracted to pay damages arising out of the ownership, maintenance or use of the automobile and contained a loading and unloading clause. It was necessary to remove the rear wheels of a trailer in the course of unloading. After the trailer had been unloaded it was necessary to replace the rear wheels and the truck crane was utilized for this purpose. The boom of the crane came in contact with an overhead tension wire resulting in injury to the driver. It was held that the policy provided primary coverage for this incident under the “use clause,” inasmuch as replacing a wheel was a use of the truck. In Merchants Co., et al. v. Hartford Acc. & Ind. Co., 187 Miss 301, 188 So 571, the truck covered by the insurance policy went into a ditch and poles were necessary to extricate it. The poles were left at the side of the road. Later a car struck the poles causing injury to the driver. It was held that the striking of the poles by the motorist arose from the use of the truck. See also Oklahoma Farm Bureau Mut. Ins. Co. v. Mouse (Okla), 268 P2d 886; Woodrich Const. Co. v. Indemnity Ins. Co. of N. A. (ND), 89 NW2d 412; Panhandle Steel Products Co. v. Fidelity Union Cas. Co. (Tex Civ App), 23 SW2d 799; Christian v. Royal Ins. Co., 185 Minn 180, 240 NW 365.
As these cases illustrate, the courts have given a broad meaning to the word “use” in all insurance policies. It is not limited to driving the automobile, but, in effect means anything that might be done to or with the car. Thus, if pushing or pulling the automobile, fueling, loading or unloading, rearranging a load already on the truck, leaving poles used to extricate a truck from a ditch, replacing a wheel and directing the movements of a vehicle have all been held to constitute the use of an automobile, certainly repairing the engine of an automobile represents the use of an automobile. There is no limiting language employed in the exclusion clause in the instant case. By employing the general term “use” without limiting language the intention clearly was that the clause was to have a broad meaning. There is no ambiguity present. The cases clearly indicate that the term “use” is not to be limited to driving the vehicle. The adjusting of a carburetor and the accelerating of the engine in the course thereof was not only a “use” of a nonowned vehicle but was vitally necessary. It is clear that Skawinski was using a car he did not own in the course of his automobile business. Skawinski was an automobile mechanic engaged in an automobile business. It was necessary for him to repair nonowned automobiles in the course of this business. If he did not repair the automobiles he would not be engaged in the repair business and could not probably use a nonowned vehicle in that business. The use to which a nonowned automobile would most often be put by one in the automotive repair business is that of repairing. A nonowned automobile would seldom be used for going for parts, pulling vehicles or facilitating work done around a garage. An automobile so used in the repair business would be an owned vehicle. There is a type of automobile insurance to cover people in the automobile business. Skawinski did not choose to pay the additional premium for a policy which would insure him while in the automobile business. Maintenance of a motor vehicle is more readily associated with ownership than is use. One supports or keeps up something he owns as an incident of ownership. He maintains ownership and possession. Hence “use” was the proper term to exclude coverage in this situation to a non-owned automobile. I think that the judgment should be reversed and the cause remanded with directions that judgment be entered declaring that the policy of insurance issued by plaintiff to Paul Skawinski contained no coverage for the occurrence of September 8, 1959 in which Roland Gordon was injured.