concurring: In my opinion whether the truck (technically called a tractor and semi-trailer) was loaded with oil field pipe or not, when it was being towed by a winch line connected to a caterpillar tractor, is immaterial.
The appellant, Metropolitan Insurance Company, a corporation, insured motor vehicles belonging to the Great Bend Pipe and Supply Company, Inc. of Great Bend, Kansas, which included the truck in question. General Insurance Corporation insured Esfeld Trucking, Inc. whose agent, Moser, was operating the caterpillar tractor in question.
The appellees (Esfeld Trucking, Inc. and General Insurance Corporation) must argue in this case that Esfeld and its employee, Moser, fall within the definition of an insured of Metropolitan’s policy by reason of the additional insured provision. No question of permission is involved. The only question is whether or not the pulling of the truck by a winch line connected to the caterpillar tractor, being operated by Moser who was Esfeld’s employee, was a use of the truck within the meaning of Metropolitan’s policy of insurance.
It must be recognized that ambiguities in the wording of an insurance contract are to be construed in favor of an insured. But such rule has no application to language which is clear in its meaning. (Kendall Plumbing, Inc. v. St. Paul Mercury Ins. Co., 189 Kan. 528, 370 P. 2d 396.) The terms “use” and “using” hardly seem ambiguous. Even aside from the plain meaning of the terms, as between insurers, the ambiguity rule should not apply.
Many courts have held that an omnibus clause or an additional insured provision in an automobile liability insurance policy should be given liberal interpretation in order to effectuate the public policy which affords a means for recovery by persons injured due to the negligence of another. (7 Appleman, Insurance Law and Practice, § 4354; Snyder v. United States Mut. Ins. Co., 312 Ill. App. 337, 38 N. E. 2d 540; Costanzo v. Pennsylvania Threshermen, etc., Ins. Co., 30 N. J. 262, 152 A. 2d 589.) Another reason for the liberal interpretation of omnibus clauses of automobile liability insurance policies is that in many jurisdictions such policies are *16required by the motor vehicle financial responsibility laws. It has been held that laws of this type are based upon a public policy which affords injured persons protection. (7 Appleman, Insurance Law and Practice, § 4353.)
In Prickett v. Hawkeye-Securities Insurance Company (10th U. S. C. A. 1960 ) 282 F. 2d 294, the opinion of the court acknowledged that certain clauses in automobile liability insurance policies were subject to liberal interpretation where the foregoing public policies were a consideration. The court, however, distinguished between the interpretation to be made when the rights of the public are involved, and the interpretation to be made when fixing rights between parties other than insured members of the public. The foregoing distinction applies here where one insurer is attempting to recover from another insurer. In tihe Prickett case the court stated:
“. . . But the definitive provision in the policy, the endorsements upon the policy, and the statutory provision, were intended to protect the public. Their purpose was to assure compensation to third persons, that is members of the public, for injury or death or for damage to property, arising out of negligent operations of motor carriers. . . . They were not intended to fix rights as between the insurance carrier and the operator of an insured motor vehicle whose negligence gave rise to death or personal injury of members of the public.” (p. 298.)
Is the word “use” of sufficient scope to include the moving of a truck by a winch line connected to a caterpillar tractor in the absence of public policy requiring a liberal interpretation of the omnibus clause? I think not. No cases have been found in American jurisdictions considering facts identical to those here involved.
The term “use,” as defined in Webster’s New International Dictionary, includes some beneficial utilization or employment of the property in question within the definition. This impression is strengthened by the opinion in Maryland Casualty Company v. Marshbank (3rd U. S. C. A. 1955) 226 F. 2d 637, in which it is stated:
“. . . the language of the clause seems so clear as to require no construction. The fallacy in the plaintiff’s position is that the words ‘use’ and ‘operation’, which it seeks to equate as synonymous, are in this setting words oi quite different meaning. For the ‘use’ of an automobile by an individual involves its employment for some purpose or object of the user while its ‘operation’ by him involves his direction and control of its mechanism as its driver for the purpose of propelling it as a vehicle. . . .” (p. 639.)
*17A common sense definition of the word “use” as it applies to the present situation requires the truck’s employment for some purpose or object of the user. In other words, within the meaning of Metropolitan’s policy of insurance, Esfeld, through its employee, Moser, who was operating the caterpillar tractor with a winch line connected to the truck, was not utilizing or employing the truck belonging to the Great Bend Pipe and Supply Company, Inc. at the time of the accident. The sole function of Esfeld, through its employee, Moser, was to pull the truck by means of a winch line connected to the caterpillar tractor, and this was not an employment of the truck for some purpose or object of Esfeld. There was no use of the truck belonging to the Great Bend Pipe and Supply Company, Inc. within the meaning of Metropolitan’s policy of insurance.
It follows that neither Esfeld nor its employee, Moser, was an insured within the meaning of Metropolitan’s policy of insurance. Hence, the appellees are not entitled to recover.
For the foregoing reasons I concur in the court’s decision.
Price, J., joins in the foregoing concurring opinion.