This is an appeal from a declaratory judgment proceeding wherein the Mobile Circuit Court in Equity rendered a decree holding appellant (to be referred to as Commercial or Commercial Standard) to be primarily liable, and the appellee (to be referred to as New Amsterdam) to be secondarily liable as related to the defense and satisfaction of any judgment or obligation involving the disposition and satisfaction of law actions filed in the Circuit Court of Mobile County by Norris P. Richard and Suzanne Michele Richard against Gary Ellis, Individually and doing business as Ellis Nurseries, and Kenneth L. Ross for alleged injuries sustained by Suzanne Michele Richard on the 27th of January, 1957.
The facts giving rise to the litigation are briefly summarized: Gary Ellis was doing business in Mobile as Ellis Nurseries, and his agent in selling his products was Kenneth L. Ross. Mr. and Mrs. Norris P. Richard, on the date mentioned, purchased some shrubbery from Kenneth L. Ross, salesman for Ellis Nurseries, at the Bradford and Government Street location in Mobile. Ross delivered the articles to the Richard's two-door automobile parked in the Ellis Nurseries' parking lot and placed part of the articles in the trunk and the remainder on the floor in the rear seat of Richard's automobile and perhaps one bush on the floor in the front of the car. Ross remained beside the open door of the automobile for a period of three or four minutes conversing with Mrs. Richard about purchases she had made previous to those that day. At the close of the conversation Ross, as a convenience for Mrs. Richard, proceeded to close the car door. Suzanne Michele Richard, their twenty-one months old daughter, as a result of the door being closed upon the fingers of her right hand, suffered the injuries complained of in the actions at law.
Appellant, Commercial Standard, had issued an automobile liability policy to Norris P. Richard, and appellee, New Amsterdam, which filed the bill, had issued a comprehensive general liability policy to Gary Ellis, Doing Business as Ellis Nurseries. The principal question is whether Kenneth L. Ross, as agent of Ellis Nurseries, and Gary Ellis, Individually and Doing Business as, etc., were covered under the omnibus clause of Commercial Standard's policy to Richard, thereby devolving upon said Commercial Standard the primary duty and obligation to defend the actions at law and to pay such judgments as may be rendered. The trial court held that Ross and Ellis, etc., were omnibus insureds under appellant's policy; that Ellis' liability, if any, is based upon the doctrine of respondeat superior; that appellant was to defend both Ross and Ellis and pay within the applicable limits of liability of its policy any judgment rendered against either or both; should appellant's liability become exhausted with respect to any judgment rendered against Gary Ellis, only then would appellee, New Amsterdam, become obligated as insurer of Ellis as a secondary or vicarious liability.
The pertinent provisions of Commercial Standard's policy which gave rise to this construction are as follows:
There is no dispute that Suzanne Michele Richard received injuries caused by the accident; nor is there any dispute that such injuries were received when Kenneth L. Ross closed the door of the Richard's automobile after delivering the articles sold. The dispute arises as to whether or not Kenneth L. Ross was "using" the automobile at the time of the accident within the omnibus insured's clause of Commercial Standard quoted above. Undoubtedly, use of the automobile by "loading" is an element of coverage in Commercial Standard's policy, but we shall undertake to show that the learned trial court was in error in holding that coverage was afforded appellees Ross and Ellis under the omnibus loading clause of Commercial's policy. No fixed rule can be set down to define the term "loading" in all cases. Each case must be treated separately according to its own particular facts. We are here concerned only with the connotation of the word "loading" under the circumstances related.
The general rule is that insurance policies should be liberally construed in favor of the insured and words of the policy must be given their ordinary and generally understood meaning. Strained or unusual construction of any of the terms should not be indulged in in favor of either the insurer or the insured. Kilby Car & Foundry Co. v. Georgia Casualty Co., 209 Ala. 356, 358, 96 So. 319.
The terms employed in Commercial's policy do call for construction since the term "loading" is not clearly spelled out. In insurance contracts the term "loading" is a term of extension and not intended to restrict coverage otherwise afforded, and the phrase "use of the automobile" in that connection extends beyond its usual connotation and applies to the physical process of moving goods in or onto an automobile while it is at rest. American Oil & Supply Co. v. United States Casualty Co., 19 N.J.Misc. 7, 18 A.2d 257; Pacific Automobile Insurance Co. v. Commercial Casualty Ins. Co., 108 Utah. 500, 161 P.2d 423, 424, 160 A.L.R. 1251; 7 Appleman's Insurance Law and Practice 92, § 4322.
Concededly Kenneth L. Ross was not using the automobile at the time of the injury in the sense that he was driving or directing its movements, but it is the contention of the appellees that he was using the automobile by "loading" the articles purchased by the Richards and the act of closing the door consummated the loading, thereby bringing him within the definition of an insured under Commercial's policy. If the policy be so construed, appellant would have the primary obligation to defend and pay. But we do not think the facts related bring him within the protection of the policy.
The most exhaustive treatise on the subject which has come to our attention appears in the annotation to the case of Pacific Automobile Ins. Co. v. Commercial Casualty Ins. Co., supra, 160 A.L.R. at page 1259, et seq. The annotator points out that with respect to the "loading and unloading" clauses in insurance policies, there are two theories—so called: (1) The "coming to rest" doctrine, and (2) The "complete operation" doctrine. With respect to the first, it is stated at page 1264:
As regards the second, the following appears at page 1267:
We see no occasion to adopt either theory as applied to the facts in this case for the simple reason that under neither theory would coverage be afforded under Commercial's policy. When the injury sustained is a direct result of such loading the coverage must be sustained. Had the injury occurred as Kenneth L. Ross placed the goods in the automobile, then the policy would have been subject to the construction placed on it by the learned trial court. However, Ross had consummated the act of "loading"—placing the goods in the automobile. During an interim period of three to four minutes after completing this "loading" a conversation between Mrs. Richard and Kenneth L. Ross about an entirely different matter ensued. When the conversation ceased and the Richards were preparing to depart, the door was closed, resulting in the injury. The loading began at the moment the goods were removed from their repository in the nursery and continued until they were loaded in the automobile. The essential fact of loading had been terminated when the accident occurred. With the goods at rest in the automobile and Ross beginning pursuit of a different business, the act of loading had been completed and the "use", therefore, of the automobile within the quoted provisions of Commercial's policy had also been terminated. The closing of the door was an independent act entirely outside of the act of loading the purchased articles and the term cannot be extended to bring the accident within the coverage of Commercial's policy.
Appellee calls attention to the fact that the appellant's brief does not conform to Supreme Court Rule 9, Code of 1940, Title 7, Appendix. The rule does require that the brief and argument refer to assignments of error specifically insisted on, which requirement was not altogether complied with by appellant. Rule 9, however, is directory only, and we may exercise our discretion in considering appellant's brief, which we have done in this case. Guy v. Lancaster, 250 Ala. 287(9), 34 So.2d 499.
Finally, we consider the cross-assignment of Honorable William R. Lauten as guardian ad litem for Suzanne Michele Richard, claiming error in the decree of the trial court awarding him only $350. He contends that the amount was inadequate. True, there was testimony of a reputable attorney of the Mobile Bar that a reasonable fee would be higher than the amount fixed by the court, and the minimum fee on a rate basis under the Mobile Bar Association Fee Bill supports this evidence. Nevertheless, the statute (Code 1940, Title 7, § 180) sets up no standard by which the ascertainment of a reasonable fee for a guardian ad litem is to be made. The court has a right to determine the fee by the exercise of its individual judgment upon a consideration of the case as developed by the record without being bound to accept the opinion of witnesses. Walker v. Walker, 256 Ala. 195, 54 So.2d 281, and cases therein cited. The matter of fixing the fee rests largely within the discretion of the trial court, subject only to correction for abuse of discretion. Thompson v. Bryant, 251 Ala. 566, 569, 38 So.2d 590. In view of the circumstances of the case, we cannot say that the trial court grossly abused its discretion in so fixing the amount of the fee.
Cross-appellant has also prayed for the fixing of an additional fee for representing his ward on this appeal. The court entertains the view that an additional fee of $200 under the circumstances of the case would be reasonable for the guardian ad litem's services in this court, which shall be assessed as a part of the costs of this appeal, and it is so ordered. Ex parte Taylor, 251 Ala. 387, 37 So.2d 656.
The decree below is reversed and a decree here will be rendered holding that appellant, Commercial Standard, is not liable under the circumstances related. As to all other matters adjudicated the decree is affirmed.
Affirmed in part and in part reversed and rendered.
LIVINGSTON, C. J., and STAKELY and COLEMAN, JJ., concur.
GOODWYN and MERRILL, JJ., dissent as to the order of reversal.