Opinion
No. 30163.
October 24, 1932.
1. INSURANCE.
Terms of public liability policy are construed favorably to insured wherever reasonably possible, particularly exclusion clauses.
2. INSURANCE. Public liability policy, issued to garage owner, excluding automobiles used by assured or employees did not exclude automobile driven by employee, after washing it, to dry out ignition.
Policy provided that it did not cover any accident caused directly or indirectly by any automobile owned or used by the assured or by any employee of the assured in charge of any such vehicle. The word "used," as used in the policy, means to put, or to convert, to one's own service, and did not include that which is a direct part of service to another.
APPEAL from circuit court of Neshoba county. HON. D.M. ANDERSON, Judge.
Dunn Snow, of Meridian, for appellant.
The word "use" will receive its ordinary meaning and will be construed in its everyday sense. The word "use" is defined as: "to employ for any purpose," such use may be temporary or permanent.
Brown v. McKee, (N.Y. 2 City Ct. R. 320-335).
The word "use" is synonymous with employment.
Hightower v. State, 72 Ga. 482.
"Use" means to put to use, to employ, or to derive service from.
Astor v. Merritt, 28 L.Ed. 401.
The word "use" means to make use of: to convert to one's own service; to avail oneself of; to employ, to put to a purpose, as to use a plow, to use a chair, to use a book, to use time, or to use flour for food; to accustom, to habituate, etc.
State v. Davis (Del.), 33 A. 439; State v. Lawrence, 92 N.W. 16.
Practically the words "used" and "employed" are are synonymous.
U.S. v. The Anjer Head, 46 Fed. 664.
The word "use" has been variously defined; as to employ for the accomplish of a purpose; to turn to account; to make use of; to treat; to convert to one's service; to avail one's self of; to employ; to put to a purpose; to employ for the attainment of some purpose or end.
Park v. Candler, 39 S.E. 89, 90; 39 Cyc. 846.
The car was being employed for the attainment of a certain end and under the decisions as hereinbefore set forth that was a use of the car.
W.W. Pierce, of Philadelphia, for appellee.
Insurance policies are always construed most strongly against the insurer, and most favorably for the insured.
Germania Life Insurance Company v. Bouldin, 100 Miss. 660; Iminent Household of Columbia Woodmen v. Bunch, 115 Miss. 512; Home Insurance Company v. Moore, 117 So. 524.
Webster defines the word "service" as follows: "Labor performed for another; duty done or required."
The drying of the car was a part of the washing in that it was necessary to dry it out before returning it to the Peebles Motor Company, as it was the employee's duty to do. If washing the car was a service being performed, and drying it was a part of the washing, it necessarily follows that drying it out and returning the car to the Peebles Motor Company was a part and parcel of the service performed by the assured to the car, through his employees, and the car was not being used within the ordinary meaning of the word.
Appellee sued on a public liability accident policy, and from the judgment in his favor this appeal is prosecuted. The insured was in the business of operating a garage and service station in Philadelphia in this state, and among other work regularly done by the insured was the washing and greasing of automobiles. This service including that of sending to the home or place of business of the automobile owner to obtain the car, and the return of the automobile to the owner when the work was finished. On the occasion in question the insured had sent for the automobile, and, in washing the vehicle, water had got into the ignition system, rendering it necessary that, among other means of drying out the ignition, the automobile be driven around for a short time. This was done by an employee of the insured, and, while this employee was directly so engaged, he negligently collided with and injured appellee.
The sole question presented is whether the injury came within one of the numerous exceptions inserted in the policy. The principal or general insurance paragraphs plainly cover the injury and liability here sued on, but it is contended that under special paragraph six injuries such as this are excluded. The pertinent parts of said paragraph six are as follows: "This policy does not cover . . . (5) any accident caused directly or indirectly by any automobile vehicle . . . owned or used by the assured or by any employee of the assured in charge of any such vehicle. . . ." The automobile admittedly was not owned by the insured, and thus the question is whether the vehicle was being used by the insured in the sense of said exclusionary paragraph. In other words, whether the automobile was at the time being used by the insured, or whether it was being serviced.
The terms of an insurance policy are construed favorably to the insured wherever this may reasonably be done, and particularly is this true in respect to exclusion clauses. The word "used" must be interpreted in this policy to mean to put, or to convert, to one's own service; it does not include that which is a direct part of the service to another, as was this case. See 8 Words and Phrases, First Series, page 7228 et seq.
Affirmed.