dissenting:
I dissent. However, I am in agreement with the decision of the majority of this Court in its findings that the trial court correctly denied the motion of the plaintiff for summary judgment, that the Hull automobile was at the time of the collision out of which this litigation arose owned by Dils Motor Company and that Hull was an employee of Dils Motor Company at that time. It is only to the action of this Court in reversing the summary judgment entered by the trial court in favor of the inter-venor, the insurance company, that I am in respectful but emphatic disagreement.
The applicable provision of the insurance policy will not be repeated in this dissenting opinion inasmuch as it is quoted in full in the majority opinion. In considering this provision, it is basic to consider that this and all other courts of this land have laid down certain rules for ascertaining the intent of parties to any written instrument. If the language used be clear and unambig*524uous, it simply “applies” the language used to the factual situation. If it is found to be ambiguous, the rules applicable to that type of instrument are used to' ascertain the meaning of the .parties and if the instrument contains irreconcilable provisions the rules are equally well established for determining the dominant intent in the circumstances. However, no court under our system of jurisprudence -has yet laid down a rule by which it may be determined into which of these categories the controverted language of such an instrument falls. That must be determined upon the facts of each particular case. It is my opinion that this Court erroneously found the provisions of the insurance policy in this case to be clear and unambiguous. A careful examination of the contents of those provisions shows that Dils Motor Company secured from the insurance company the policy of liability insurance providing coverage to the following persons: (1) the named insured; (2) “. . . any partner, employee, director or stockholder . . . while acting within the scope of his duties as such ...”; (3) “... any person or organization having a financial interest in the business of the named' insured covered by this policy,”; and (4) “ . . . any person while using an automobile covered by this policy . . . provided the actual use of the automobile is by the named insured or with his permission.” It is apparent to me that there is definitely an ambiguity between (2), as denominated above, relating to the coverage of an employee while acting within the scope of his employment, and (4), providing for coverage to> “any person while operating an automobile covered by this policy, ...” with the named insured’s permission.
Hull, an employee, would have been covered ■under the provisions of (2) above if he was acting within the scope of his dirties at the time of the accident. However, the automobile in question at the time of the accident was not being used by any person not an employee and therefore (4), covering any person, not an employee, operating ■the automobile with permission of the named insured is not applicable in the case at bar. Vehicles owned by employees are specifically excluded under the type of *525policy in question and the only coverage extended to an employee under the clear provisions of this garage liability policy in any event is while he is acting within the scope of his duties as such and not otherwise. Dils Motor Company is a franchised dealer of motor vehicles manufactured by one of the large manufacturers of this country. It is apparent what the clause beginning with the words “any person” meant. It was meant to include all prospective purchasers of new and used automobiles who drove such cars on trial. If it had been the intent of the parties to the contract of insurance to include employees, within the scope of their duties, in the general clause which states that “any person” is covered if he is operating a motor vehicle with the insured’s permission, there was utterly no reason for the clause providing specifically for such coverage. “Any person” would certainly have included all employees of Dils and certainly if such an employee was operating a motor vehicle within the scope of his employment he would have had the “permission” of his employer. There is an ambiguity in the pertinent language of this policy which could easily be resolved by acknowledging that there is such an ambiguity and applying the rules applicable to such a provision of a contract or other written instrument to ascertain the intent of the parties. There is no irreconcilable conflict in the language used in the policy and just as surely, in my opinion, it is not clear and unambiguous.
This Court, in its recent decision of Diamond v. Parkersburg-Aetna Corp., 146 W. Va. 543, 122 S. E. 2d 436, reasserted what the Court has always held with reference to the ascertainment of the meaning of a written instrument, whether it be a constitutional provision, a statute or a contract. In the opinion in that case the Court specifically said such rules were “applicable to all types of written instruments”. The first syllabus point of that case is in this language:
“ ‘In ascertaining the intention of the people in adopting a constitution all parts of the constitution must be considered, every article, section, *526clause, phrase and word allowed some effect, and all parts, clauses, phrases and words harmonized, if possible. No part or word in it can be ignored, disregarded, treated as meaningless or denied purpose and effect, unless there be irreconcilable contradictions and repugnancy.’ Point 3 Syllabus, State v. Harden, 62 W. Va. 313.”
Certain it is that this Court in this case has not given consideration to “every article, section, clause, phrase and word . . . and all parts, clauses, phrases and words harmonized,”. In order to reach its conclusion the majority have read out of the policy of insurance the provision that “(1) any partner, employee, director or stockholder thereof while acting within the scope of his duties” is covered by the provisions of the policy. In order to reach their decision it was necessary for them to consider that language redundant and such conclusion is confirmed by this language of the fifth point of the syllabus wherein it is stated that the pertinent language of the policy “. . . covers an employee of the named insured while actually using the automobile with the permission of the named insured, whether such use be within or without the scope of his .employment.” Such holding, to repeat, renders superfluous a clause of this policy of equal dignity with the other provision.
The Legislature of this State has not seen fit to pass a law making compulsory the securing of a liability insurance policy as a condition precedent to operating a motor vehicle. The Dils Motor Company was free to enter into such a policy of insurance as was agreeable to both parties and for which Dils would pay the premiums. To the extent of such coverage and to that extent only is this insurance company liable. That does not mean at all that the plaintiff may not secure a judgment against the employee Hull and against the Dils Motor Company, and whether he can satisfy such judgment is not a matter of any concern to this Court. If the Dils Motor Company gave the employee Hull “permission” to operate his motor vehicle “without the scope of his employment”, as stated in the fifth point of the syllabus *527of the majority opinion of the Court, it could, be. liable to the plaintiff along with Hull, but that would not necessarily make the insurance company liable. For example, if Dils had authorized Hull to use 'his personal automobile, excluded by the policy herein, to transport other employees on some errand of Dils during the course of which an accident occurred, both Dils and Hull could be held liable, yet the insurance company could not be required to respond in any way.
I would affirm the interlocutory judgment of the Circuit Court of Wood County in toto.
I am authorized to say .that Judge Berry concurs in the views expressed in this dissent.