I am unable to agree with my associates and adhere to the views originally expressed. See Haeuser v. Aetna Casualty Surety Company et al., La.App., 185 So. 493.
In fact, at the oral argument presented on rehearing, I was much impressed with a fact, to which no reference was made in the original opinion, which is that the policy itself, in the "omnibus clause", which is the clause with which and with which alone we are concerned, makes use of the words "actual use" in such a way as to make it clear that those words were intended to mean — and cannot mean anything else than — the use to which the automobile was being put at the time of the accident; in other words, that the coverage of the "omnibus clause" is extended by its own terms only to one who has permission to put the automobile to the actual use to which it is being devoted at the time of the occurrence.
The clause stipulates for protection of the "insured" and provides that this word "insured" shall include any person using the car with the permission of the "named insured". If nothing else was contained in the clause, I can see that there would be the possibility of construing the policy as extending its coverage to any person initially given permission to use the car, regardless of whether the permission had contemplated the particular use to which the car was being put at the time of the occurrence. This was the result reached in Parks v. Hall,189 La. 849, 181 So. 191.
But the "omnibus clause" does not stop there. It reads as follows: "The unqualified word `Insured' wherever used, includes not only the named insured, but also any person while using the automobile and any person or organization legally responsible for the use thereof, provided that the declared and actual use of the automobile is `pleasure and business', or `commercial', each as defined herein, and provided, further, that the actual use is with the permission of the named insured."
It is plain that even the "named insured" is protected only if he has declared the use or uses to which the automobile will be put and the "actual use" is one of those declared, and it goes further and provides that, so far as the borrower is concerned, its protection is extended to him provided "the actual use is with the permission of the named insured". Now, if we analyze these two clauses together, we see that where the policy uses the words "actual use" in the first clause it means — and can only mean — the use to which the automobile is being put at the time of the occurrence. I think, then, that the policy has established a clear definition of the term "actual use" and that, therefore, when, in the second clause, the policy provides that it shall protect the borrower provided "the actual use is with the permission of the named insured", it means that the borrower is protected provided the use to which the car is being put at the moment of the accident is a use for which the named insured granted permission.
My associates seem to feel that, when the framers of the policy inserted in the second clause the term "actual use", they simply meant that the borrower is protected if the use to which he has put the car at the time of the accident is one of those included within the "declared uses". But that is obviously not what the policy provides. It might have provided for coverage of the borrower if, at the time of the accident, he was using the car for one of the declared uses. But it does not do any such thing. It states that it covers the borrower only if the named insured has given his permission for the "actual use" to which the car is being put at the time of the occurrence, and I have already shown that it has established as a definite meaning for the words "actual use" the use to which it is being put at the time of the accident. There can be no doubt here that the "named insured" had not given his permission to use the car for any purpose other than to return it to the garage. Therefore there was no permission for the "actual use" and, as a result, there was no coverage. When the employe devoted the car to a purpose of his own, it certainly cannot be said that the "actual use" to which it was being put was with the permission of the "named insured".
I respectfully dissent
On Application for Correction of Decree.