PER CURIAM.
This is an appeal from a final decree of a court of equity based upon the verdict of the jury holding that appellee was not liable on its liability insurance policy with the appellant Ivan Trammell, as the beneficiary, with respect to an accident causing the death of A. D. Boutwell, as to which it was contended that the complainant should comply with the terms of said policy contract. This is a declaratory judgment proceeding.
There was an issue of fact submitted to the jury which tried the cause upon demand made by the respondents.
The primary question is dependent upon a proper construction of the policy in connection with the facts relating to the transaction. At the time of the accident Ivan Trammell owned three trucks. He had a contract for general hauling with the Republic Steel and Iron Company, for which purpose he had two trucks. On June 24, 1949, he made another contract with said company whereby he was to haul certain rock for them, and for which Republic Steel and Iron Company required him to obtain a policy of liability insurance. To haul the rock he bought a 1946 Ford, one and one-half ton, truck. The policy in question covering said truck was issued on that date in accordance with that requirement. Not long after the hauling of the rock began under said agreement, which was also the date of the policy of insurance which only applied to the 1946 Ford truck used in hauling the rock, — the rock hauling contract terminated for a reason not here material. That left Trammell with his contract for general hauling for Republic Steel and Iron Company with three trucks, including the 1946 Ford for which he had no immediate use. He thereupon made what he called a fifty-fifty contract with one J. W. Robbins for what they termed a free-lance hauling enterprise, whereby said Robbins was to have the privilege of getting such hauling as he was able to obtain and at such prices as he could command, with a provision that Trammell was to have fifty percent of the [433]*433income. Robbins did not haul for Republic Steel and Iron Company after the termination of the rock hauling contract, but sometimes Trammell used the 1946 Ford truck under his general hauling contract with Republic in place of one of his other trucks, and likewise Robbins sometimes used one of them. But at the time of the accident in question, Robbins was using the 1946 Ford truck for the purpose of obtaining business under his free-lance arrangement.
The question hinges, in the first place as we have said, upon a proper interpretation and application of the liability insurance policy which Trammell had on the 1946 Ford truck. The terms of the standard policy form which was used on that occasion provided:
“Item 5. The purposes for which the automobile (including truck) is to be used are commercial. * * *
“(a) The term ‘pleasure and business’ is defined as personal, pleasure, family and business use. (b) The term ‘commercial’ is defined as use principally in the business occupation of the named insured as stated in item 1, including occasional use for personal, pleasure, family and other business purposes.”
The occupation of the insured, who is Ivan Trammell as stated in Item 1 is “coal dealer — hauls exclusively for the Republic Steel and Iron. Company.” There was attached to the policy of insurance, when issued, a rider signed by Trammell, providing, so far as here material: “All commercial automobiles owned and operated by the named insured are to be used in hauling exclusively in the business of Republic Steel and Iron Company.” While not here material, the rider contained other important provisions. It did not serve to eliminate sub-section (b) of Item 5, supra. Birnbaum v. Jamestown Mutual Ins. Co., 298 N.Y. 305, 83 N.E.2d 128.
The liability here involved of the complainant is dependent upon a construction of those terms of the policy as applied to the facts proven. That is to say, the provisions contained in the standard policy form which was there used, in connection with those of the rider, both together form one policy contract.
The trial court in his oral charge instructed the jury as follows:
“It is the opinion of the court and the jury is hereby instructed that a proper construction of the policy must be made by considering the policy proper and the rider attached to it. That although the rider attached to the policy states the hauling must be exclusively in the business of the Republic Steel and Iron Company, Subsection B of Item Five is still applicable and that the insured or person driving his truck with the permission of the insured at the time of the accident is covered by the terms of the policy in question if the use being made of the truck at the time of the accident was an occasional use for personal, pleasure, family and other business.
“The term ‘occasional use’ or the term ‘occasional’ is defined by Webster as ‘occurring at times but not constant, not regular nor systematic; made or happening as opportunity requires or admits; casual; incidental.’ Under this construction of the policy —and this is the real crux of the thing so far as the jury is concerned, it is the duty of the jury to determine whether the driver of the truck at the time of the accident was using the truck • with the permission of Ivan Trammell and whether such use was an occasional use for personal, pleasure, family or other business purposes.”
The verdict of the jury was in favor of the complainant, and respondents appeal from a decree accordingly. It must have been a finding by the jury that, while it may be that the truck was then being used with the permission of Trammell as an occasional use for “personal, pleasure, family or other business purposes,” it was not being used principally in the business of hauling for Republic Steel and Iron Company. The jury probably found that it was being used principally in the “freelance” enterprise and that it was used on [434]*434the occasion of the accident to promote that enterprise.
The complainant, who is the appellee, contends that a proper interpretation of the contract should be declared to be as expressed in the language of the rider, that the truck to be covered by the insurance must have been used exclusively in the business of Republic Steel and Iron Company, which means that at the time of- the accident it must have been in the act of being used in the business o'f Republic.
If the construction which appellee places upon the policy is to prevail, the result would be that appellee was entitled to the declaratory judgment which it received without regard to the verdict on the issue submitted to the jury. For the evidence is without conflict that the truck was being used with the permission of Trammell, the insured, and not in the business of Republic Steel and Iron Company.
We think that the interpretation which the trial court put upon the policy, which includes of course the rider as a part of it, was not prejudicial to appellants. But it should have included also the requirement in Item 5, sub-section (b) that the truck was then used principally in the business of hauling for Republic Steel and Iron Company. If it was not principally so used, it was withdrawn from the coverage and it was immaterial that on this occasion its use was an occasional one, as there specified.
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PER CURIAM.
This is an appeal from a final decree of a court of equity based upon the verdict of the jury holding that appellee was not liable on its liability insurance policy with the appellant Ivan Trammell, as the beneficiary, with respect to an accident causing the death of A. D. Boutwell, as to which it was contended that the complainant should comply with the terms of said policy contract. This is a declaratory judgment proceeding.
There was an issue of fact submitted to the jury which tried the cause upon demand made by the respondents.
The primary question is dependent upon a proper construction of the policy in connection with the facts relating to the transaction. At the time of the accident Ivan Trammell owned three trucks. He had a contract for general hauling with the Republic Steel and Iron Company, for which purpose he had two trucks. On June 24, 1949, he made another contract with said company whereby he was to haul certain rock for them, and for which Republic Steel and Iron Company required him to obtain a policy of liability insurance. To haul the rock he bought a 1946 Ford, one and one-half ton, truck. The policy in question covering said truck was issued on that date in accordance with that requirement. Not long after the hauling of the rock began under said agreement, which was also the date of the policy of insurance which only applied to the 1946 Ford truck used in hauling the rock, — the rock hauling contract terminated for a reason not here material. That left Trammell with his contract for general hauling for Republic Steel and Iron Company with three trucks, including the 1946 Ford for which he had no immediate use. He thereupon made what he called a fifty-fifty contract with one J. W. Robbins for what they termed a free-lance hauling enterprise, whereby said Robbins was to have the privilege of getting such hauling as he was able to obtain and at such prices as he could command, with a provision that Trammell was to have fifty percent of the [433]*433income. Robbins did not haul for Republic Steel and Iron Company after the termination of the rock hauling contract, but sometimes Trammell used the 1946 Ford truck under his general hauling contract with Republic in place of one of his other trucks, and likewise Robbins sometimes used one of them. But at the time of the accident in question, Robbins was using the 1946 Ford truck for the purpose of obtaining business under his free-lance arrangement.
The question hinges, in the first place as we have said, upon a proper interpretation and application of the liability insurance policy which Trammell had on the 1946 Ford truck. The terms of the standard policy form which was used on that occasion provided:
“Item 5. The purposes for which the automobile (including truck) is to be used are commercial. * * *
“(a) The term ‘pleasure and business’ is defined as personal, pleasure, family and business use. (b) The term ‘commercial’ is defined as use principally in the business occupation of the named insured as stated in item 1, including occasional use for personal, pleasure, family and other business purposes.”
The occupation of the insured, who is Ivan Trammell as stated in Item 1 is “coal dealer — hauls exclusively for the Republic Steel and Iron. Company.” There was attached to the policy of insurance, when issued, a rider signed by Trammell, providing, so far as here material: “All commercial automobiles owned and operated by the named insured are to be used in hauling exclusively in the business of Republic Steel and Iron Company.” While not here material, the rider contained other important provisions. It did not serve to eliminate sub-section (b) of Item 5, supra. Birnbaum v. Jamestown Mutual Ins. Co., 298 N.Y. 305, 83 N.E.2d 128.
The liability here involved of the complainant is dependent upon a construction of those terms of the policy as applied to the facts proven. That is to say, the provisions contained in the standard policy form which was there used, in connection with those of the rider, both together form one policy contract.
The trial court in his oral charge instructed the jury as follows:
“It is the opinion of the court and the jury is hereby instructed that a proper construction of the policy must be made by considering the policy proper and the rider attached to it. That although the rider attached to the policy states the hauling must be exclusively in the business of the Republic Steel and Iron Company, Subsection B of Item Five is still applicable and that the insured or person driving his truck with the permission of the insured at the time of the accident is covered by the terms of the policy in question if the use being made of the truck at the time of the accident was an occasional use for personal, pleasure, family and other business.
“The term ‘occasional use’ or the term ‘occasional’ is defined by Webster as ‘occurring at times but not constant, not regular nor systematic; made or happening as opportunity requires or admits; casual; incidental.’ Under this construction of the policy —and this is the real crux of the thing so far as the jury is concerned, it is the duty of the jury to determine whether the driver of the truck at the time of the accident was using the truck • with the permission of Ivan Trammell and whether such use was an occasional use for personal, pleasure, family or other business purposes.”
The verdict of the jury was in favor of the complainant, and respondents appeal from a decree accordingly. It must have been a finding by the jury that, while it may be that the truck was then being used with the permission of Trammell as an occasional use for “personal, pleasure, family or other business purposes,” it was not being used principally in the business of hauling for Republic Steel and Iron Company. The jury probably found that it was being used principally in the “freelance” enterprise and that it was used on [434]*434the occasion of the accident to promote that enterprise.
The complainant, who is the appellee, contends that a proper interpretation of the contract should be declared to be as expressed in the language of the rider, that the truck to be covered by the insurance must have been used exclusively in the business of Republic Steel and Iron Company, which means that at the time of- the accident it must have been in the act of being used in the business o'f Republic.
If the construction which appellee places upon the policy is to prevail, the result would be that appellee was entitled to the declaratory judgment which it received without regard to the verdict on the issue submitted to the jury. For the evidence is without conflict that the truck was being used with the permission of Trammell, the insured, and not in the business of Republic Steel and Iron Company.
We think that the interpretation which the trial court put upon the policy, which includes of course the rider as a part of it, was not prejudicial to appellants. But it should have included also the requirement in Item 5, sub-section (b) that the truck was then used principally in the business of hauling for Republic Steel and Iron Company. If it was not principally so used, it was withdrawn from the coverage and it was immaterial that on this occasion its use was an occasional one, as there specified.
With respect to the “exclusive” use of the truck in hauling for Republic Steel and Iron Company as contained in the rider, we observe that without the rider the policy would have the same meaning in that respect and of course subject to the definition of “commercial,” as quoted above from the policy, because without the rider the policy contained a stipulation that the purpose for which the truck is to be used is as stated in Item 1 of it, which is that the insured hauls exclusively for Republic Steel and Iron Company. So that, the definition of “commercial” in Item 5 (b), supra, is to be interpreted in connection with the exclusive hauling provision of the policy with or without the rider.
Respondents’ refused charges 1, 2, 3, 4, 6, 7 and 8 declare a principle with reference to the construction of the policy, the effect of which is covered by that feature of the judge’s oral charge interpreting the policy, which we have copied above, and therefore there is no error in the refusal of them.
Refused charge 5 was properly refused for in effect it was the affirmative charge for the respondents, in that, there was no conflict in the evidence but that the truck was being used by Robbins with the permission of Trammell for business purposes other than hauling for Republic Steel and Iron Company. Whereas it left out of consideration the question of whether such business purpose was an occasional use only.
Objection was made to the proof that such a policy of insurance without the rider would entail a premium charge of $217.40, whereas the premium charge on the policy with the rider was $127.90. Obj ection was also made to the argument of counsel in that respect. Appellants contend that such proof was immaterial and prejudicial, viewed in the light of said argument of counsel.
It is also contended in that connection there is no evidence that Trammell knew of such difference in the premium rate. But the evidence shows that the rates are approved by State authority. That all states operate under those rates and all insurance companies write at certain fixed rates. There is also a provision of law which requires the supervisor of rates of the State Department of Commerce to approve such premium rates. Section 395, Title 28, Pocket Part, Code; General Acts 1945, p. 148, section 8, which are open for the inspection of the public. Section 397, Title 28, Pocket Part, Code.
Proof that this was available was but the statement of a legal principle, and the argument that it was available refers to a legal status which could not be prejudicial to appellants in view of the issues submitted to the jury, although it might be immaterial. Trammell did accept the policy with the rider; he could have had [435]*435one without the rider, if he had wanted it. That right, proof of it and argument about it, were not prejudicial nor illegal.
Assignments 2 and 3.
These assignments relate to the ruling of the court sustaining objection to an argument by counsel for respondents to the effect that this suit involves the question of whether Mrs. Boutwell (widow of deceased) may have a fund out of which a judgment in a suit at law partly for her benefit may be satisfied. The same implication is involved in both assignments of error. It is but the oft repeated emphasis upon liability insurance to cover any judgment which may be obtained. We think this remark was not justified as an argument on the issue before the jury. It is true that the result of this declaratory judgment will determine the liability of appellee for the payment in whole or in part of such judgment as might be rendered in the suit at law against Trammell. But it is not error to exclude an argument to that effect in a suit to ascertain what is the true state of the facts which determine whether it is the duty of appellee to take the burden of .the defense of the suit at law and pay the judgment. Smith v. Baggett, 218 Ala. 227, 118 So. 283.
Assignment No. 9.
This assignment relates to the non-joinder of the minor children of Mrs. Bout-well.
The suit at law is under section 312, Title 26, Code, Workmen’s Compensation Law. Murphy v. Louisville & Nashville R. R. Co.,1 61 So.2d 3. The deceased was killed in an accident arising out of and in the course of his service as an employee of McKesson and Robbins. Appellant Liberty Mutual Insurance Company was the employers’ insurance carrier and is paying compensation to the widow and minors. The suit at law was filed by the Liberty Mutual Insurance Company against Trammell and Robbins for the benefit of Mrs. A. D. Boutwell, dependent widow and two named minor children of deceased, A. D. Boutwell, as provided by said feature of the Workmen’s Compensation Law. The suit was filed after this bill in equity was begun to obtain a declaratory judgment. But before the bill was filed Mrs. Boutwell had asserted a claim against the insured, Trammell, and this complainant for damages on account of the death of her husband. The bill alleges that there is an actual controversy between complainant and respondents Trammell and Robbins as to the obligation of complainant under its policy of insurance; that respondent Liberty Mutual Insurance Company is paying to Mrs. Boutwell compensation on account of the death of A. D. Boutwell. The complaint in the suit at law was introduced in evidence and shows that it is for the benefit not only of Mrs. Boutwell but also of the two minor children.
It is insisted by appellants that the minor children are necessary parties to this suit. But a suit for a declaratory judgment is to settle a controversy of an appropriate sort between the parties thereto. The bill alleges that the dispute is between complainant and these respondents. Therefore, these respondents are the only necessary parties when they are on antagonistic sides of the litigation. The minor children would not be bound by the decree, but they are not necessary parties in a suit to settle a justiciable controversy between complainant and respondents. Section 166, Title 7, Code, provides that “All persons shall be made parties who have or claim any interest which would be effected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding.” That statute does not render it mandatory that every interested person shall be made a party since it further provides that “no declaration shall prejudice the rights of persons not parties”. But it is said that the absence of interested persons may induce the court to exercise its discretionary power to refuse to render a declaratory judgment when it would not terminate the controversy. This is by reason of section 161, Title 7, Code. The authorities to that effect are noted in 87 A.L.R. 1244. [436]*436But the cases also assert the principle, which is self sufficient, that persons interested on one side only of the controversy cannot invoke the jurisdiction of the court conferred by statute, although they may disagree as to the law. State ex rel. v. Board of Com’rs of Wyandotte County, 128 Kan. 516, 279 P. 1; Perry v. City of Elizabethton, 160 Tenn. 102, 22 S.W.2d 359. That is also the nature of the situation in Holland v. Flinn, 239 Ala. 390, 195 So. 265, decided on the basis of those cases. This point is not well taken.
Assignments of error 10 and 11.
These assignments relate to the motion to set aside the verdict of the jury and co grant a rehearing. It is based upon the principles which are contained in the argument of the other assignments of error.
The foregoing opinion was prepared by FOSTER, Supernumerary Judge of this Court while serving on it at the request of the CHIEF JUSTICE, under authority of Title 13, section 32, Code, and it was adopted by the Court as its opinion.
We think there is no error shown in the assignments of error to reverse the decree of the circuit court.
Affirmed.
LIVINGSTON, C. J., and BROWN, SIMPSON and GOODWYN, JJ., concur.