Freund, Stanton and Francis. The opinion of the court was delivered by Francis, J.c.c. (temporarily assigned).
The critical question here is whether by virtue of the omnibus clause in a policy of liability insurance issued to an insured, the respondent insurance company became a co-insurer of a certain risk with appellant.
The record discloses that Adrian Hendricks and William Hendricks, trading as Hendricks Brothers, owned a certain automotive crane. The American Mutual Liability Insurance Company issued a liability policy to Hendricks Brothers insuring them against loss from the liability imposed by law arising from the use of the crane.
The policy contained the standard omnibus clause which provided:
"* * * the unqualified word 'insured' includes the named insured and 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 by the named insured or with his permission * * *."
Terminal Construction Corporation was engaged in the construction of a certain building at the time of the events with which we are concerned in this proceeding, and appellant,
Liberty Mutual Insurance Company, had issued a general liability policy of insurance safeguarding it from liability imposed by law arising out of its general construction operations.
Both policies contained like liability limits and co-insurance clauses, which say as to other insurance:
"If the insured has other insurance against a loss covered by this policy the company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the declarations bears to the total applicable limit of liability of all valid and collectible insurance against such loss; * * *."
Terminal rented the Hendricks Brothers crane with its operator for use in the construction of the building, to which reference has been made. And the parties agreed in the trial court that according to the contract crane and crew were to perform work under the direction of Terminal.
It was likewise stipulated that while the crane was being used on the Terminal project, the original plaintiff, one George McManus, was injured when struck by a load of lumber which was being lowered into position by the crane. A further and crucial stipulation was made, namely, that at the time of this accident,
"the crane was on the ground and the operator [Hendricks Brothers employee] could not see to lower the lumber in its place upon the roof of the building under construction. Accordingly, therefore, the foreman of Terminal stood on the roof and with arm signals, directed the lowering of the lumber onto the ...