specially concurring:
If Libby were to be considered as using the Brown Brothers’ truck at the time of the injury, then the points concerning proximate cause and the exclusionary clause of the policy would become matters for decisión, and I would agree with the conclusions reached in this court’s opinion. I would not reach those questions, however, because it is my opinion that Libby was not using the truck within a proper construction of the policy.
Brown Brothers, as contract carriers, entered into a written agreement with Libby to supply certain equipment for the delivery of Libby’s merchandise. While this contract states that these trucks were to be for the “exclusive use” of Libby, it also provides that the equipment was to be in the custody of, and maintained solely by, Brown Brothers; that the trucks were to be loaded, operated and unloaded solely by employees of Brown Brothers. There is nothing to indicate that Libby had any authority to control the operations of Brown Brothers under the contract other than to direct what hauling or deliveries were to be performed. All salaries, expenses, licenses and taxes of the truck operations were to be paid by Brown Brothers.
Considering the facts in evidence and what I think is the proper construction of the contract, taken as a whole, I am led to the conclusion that Libby was not using the trucks, within the meaning of the policy.
The extension of the definition of the word “use” to include loading and unloading, does not alter the situation, in my opinion. Certainly the truck was being loaded, hut no employee of Libby (not even a supervisory employee) was engaged in the loading operation in progress at the time of the injury. In this respect the cases cited by plaintiff are distinguishable. (Woodrich Const. Co. v. Indemnity Ins. Co., 89 NW2d 412 (Minn); Wagman v. American Fidelity and Cas. Co., 304 NY 490; Bituminous Cas. Co. v. American Fidelity & Cas. Co., 22 Ill App2d 26, 159 NE2d 21.)