Summary
In Ford Motor, a truck owned by one Clifton and operated by a Clifton employee came upon Ford property to pick up cinders purchased by Clifton from Ford. The Clifton employee loaded the truck by means of a chute device, moved the truck out of the chute area, and, without having shut off the loading device, went back to shovel the spillage into the truck.
Summary of this case from Hake v. Eagle Picher Co.Opinion
No. 39738
Decided April 20, 1966.
Insurance — Automobile liability — Construction of policy — "Use" construed — "Loading and unloading" — Person "insured," when.
CERTIFIED by the Court of Appeals for Cuyahoga County.
The Clifton Concrete Supply Company, for a number of years, purchased from the Ford Motor Company cinders or fly ash as a salvageable by-product of Ford's manufacturing operations. Clifton removed this fly ash from a cinder loading device or ash silo owned and maintained by Ford and located on Ford's premises. This fly ash was hauled away in motor trucks owned by Clifton and operated by Clifton's employees.
The driver of one of Clifton's trucks, after loading the truck, drove it out from under the ash silo and, without shutting down the loading device, proceeded to broom and shovel the spillage into the truck, in accordance with instructions from his employer. While so engaged, a chunk of frozen cinders fell from the silo and struck the driver, injuring him.
The driver brought suit against Ford to recover for the injuries sustained. Ford notified the appellant herein, Continental Casualty Company, of the suit and requested it to take over the defense, which it refused to do.
At the time of the accident, there was in effect a standard automobile liability policy issued by Continental Casualty Company to Clifton covering the ownership, maintenance or use of the truck then being operated by the injured employee.
Ford settled the suit brought against it by the truck driver and brought the present action against Continental to recover the amount of the settlement, plus attorney fees and costs.
The trial court rendered judgment for defendant. The Court of Appeals reversed the judgment and certified the record to this court as a conflict case.
Messrs. Bulkley Butler and Mr. E.A. Pedley, for appellee.
Messrs. Hauxhurst, Sharp, Cull Kellogg and Mr. Robert W. Sharp, for appellant.
The Ford Motor Company was not making actual use of the truck and was not an insured under Continental's policy issued to Clifton, at the time of the accident. The judgment of the Court of Appeals is reversed on authority of Travelers Ins. Co. v. Buckeye Union Casualty Co., 172 Ohio St. 507, and Buckeye Union Casualty Co. v. Illinois National Ins. Co., 2 Ohio St.2d 59.
Judgment reversed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.