Persellin v. State Automobile Insurance Ass'n , 75 N.D. 716 ( 1948 )

In this case respondent has filed a vigorous petition for rehearing in which he asks a reconsideration of our construction of the "omnibus clause" contained in the insurance policy upon which this suit is founded. This clause reads: "The unqualified word ``insured' used in coverages A B and other parts of this policy, when applicable to such coverages, includes the named insured and, except where specifically stated to the contrary, also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is with the permission of the named insured." This language is clear. In addition to the named insured, it makes both persons using the automobile and persons responsible for the use thereof insured persons, if but one condition be met. That condition is that the actual use of the automobile be with the permission of the named insured. There is no condition that the driving or operation of the car must be with the permission of the named insured, and no condition that a person, other than the user, who may become legally responsible for the use of the automobile must have the permission of the named insured. Thus if the user of the automobile has the permission of the named insured to use and if such user is using the automobile for a permitted purpose at the time a legal liability is incurred, then the user and any other person legally responsible for the use are insured persons under the policy. We see no other reasonable construction.

Respondent contends that the word "use" always includes operation. He cites Webster's International Dictionary to show that one of the definitions of the verb "to use" is "to put in operation". The noun "use" is one of many connotations. The definition listed first in Webster's International Dictionary 2d ed is "Act of employing anything, or state of being employed; application; employment." Roget's Thesaurus gives as synonyms, "employment, application (to a purpose)" and others. At the time of the accident the automobile was being employed for, or applied to, the purpose of entertaining Shapiro's guests. It was being so employed by Shapiro. Such employment by Shapiro was a "use" permitted by the named insured.

In construing this contract, as we have, we have given to the word "use" one of its most common meanings. The definition we have accepted is clearly consistent with the context of the policy. In Item five the policy provides: "The purposes for which the automobile is to be used are business and pleasure." There can be no question that in this Item the word use means apply to a purpose. It is true that the word use has other meanings but "where the terms of an insurance policy will bear two interpretations, that one will be adopted which sustains the claim for indemnity." Beauchamp v. Retail Merchants Asso. 38 N.D. 483, 165 N.W. 545. See also Myli v. American L. Ins. Co. 43 N.D. 495, 175 N.W. 631, 11 A.L.R. 1097.

Respondent has also asked us to reconsider our finding that Shapiro had Farrar's (the named insured) permission to use the automobile for pleasure. He cites Farrar's testimony that he bought the car so Shapiro could go out and do some business. It is clear that Farrar's motive in buying the car was to enable Shapiro to go to work for him but it is also clear from the rest of the record, that having purchased the car, Farrar turned it over to Shapiro to use as his own.

The petition for a rehearing is denied.

CHRISTIANSON, Ch. J., NUESSLE, J., and MILLER and GRIMSON, District Judges, concur.