Appeal from the Superior Court of Cook County; the Hon. DONALD
S. McKINLAY, Judge, presiding. Affirmed.
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.
General Accident Fire and Life Assurance Corporation and Libby Furniture and Appliance Company, its assured, filed this declaratory judgment suit to obtain coverage under a comprehensive general automobile insurance policy issued by Employers Mutual Casualty Company to Brown Brothers Cartage Company. The cause was heard on the complaint, amended answer and amendment thereto, a stipulation of facts and the testimony of two witnesses. Plaintiffs have appealed from an adverse judgment in the Superior Court.
The essential facts are not in dispute. Plaintiff Libby Furniture and Appliance Company contracted, on December 17, 1953, with defendant Brown Brothers Cartage Company for the delivery and hauling of Libby's merchandise. The written agreement provided that Brown Brothers would supply eight trucks and two tractors and trailers for Libby's exclusive use. On December 30, 1955, in pursuance of this agreement, Thomas Blakesley and Walter P. Dykes, two of Brown Brothers' employees, drove one of their company trucks up to the Libby loading dock to pick up merchandise for delivery to Libby customers. They followed the customary procedure of obtaining from Libby's shipping department a sheet indicating the particular merchandise to be loaded, the bin and dock where it had been placed by Libby's employees, and the customers' names and addresses. The two men proceeded to load the truck and while Blakesley was carrying two lamps "and was stepping from the loading dock to the truck" he fell and injured his right leg. Blakesley filed suit against Libby claiming that his injuries were the direct result of Libby's defective, hazardous and negligently maintained dock. He demanded $75,000 in damages.
Brown Brothers was insured at the time of the accident under a "Comprehensive-General-Automobile Liability" policy issued by Employers, who paid Blakesley's claim for workman's compensation. Libby was insured for the accident in question under a "Combined Comprehensive Liability" policy issued to it by General Accident. This policy subrogates General Accident to all rights of Libby, provides that where there is other insurance covering the loss the policies shall apply pro rata, and contains a clause withholding coverage on any non-owned automobile, such as the Brown Brothers' truck involved here, until the coverage of any policy issued directly upon such vehicle has been exhausted.
General Accident by letter requested of Employers that the latter assume the defense of the Blakesley suit on grounds that the injury was "a result of the loading and unloading operation" of Brown Brothers' vehicle and thus was covered under the Omnibus clause of Employers' automobile policy. When Employers refused the request, General Accident and Libby filed the instant suit naming Employers, Brown Brothers and Blakesley as defendants. The complaint was dismissed as to Brown Brothers and Blakesley. As Libby's position in the Blakesley suit will be unaffected by the result in the instant cause, this matter boils down to a dispute between the two insurance companies. The trial court found in favor of defendant, declaring that Employers is not obligated under its automobile policy to Brown Brothers to defend or pay any judgment rendered against Libby in the Blakesley suit.
The issue before us is purely one of law. Plaintiffs contend that Libby is entitled to coverage as an additional insured under the Omnibus clause of Employers' policy. Defendant urges the contrary view upon the theory that Libby at the time of the occurrence was neither "using" nor "loading" Brown Brothers' truck within the meaning of the policy.
The pertinent provisions of Employers' policy here under consideration read as follows:
1. Coverage A Bodily Injury Liability
To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person and caused by accident.
Receipts Basis Truckmen
It is agreed that such insurance as is afforded by the policy for Bodily Injury Liability, for Property Damage Liability and for Medical Payments applies with respect to all owned automobiles and hired automobiles, and the use, in the business of the named insured, of non-owned automobiles, subject to the following provisions:
1. Definition of Insured. As respects such insurance, Insuring Agreement III, Definition of Insured, is replaced by the following:
The unqualified word "insured" includes the named insured and also includes any person while using an owned automobile or a hired automobile and any person or organization legally responsible for the use thereof, provided the actual use of the ...