73 S.W.2d 574 | Tex. App. | 1934
The American Indemnity Company seeks reversal of the judgment of the trial court in favor of W. M. Jagoe on a policy of insurance on his automobile which was destroyed by fire.
The policy sued on stipulated for the payment of $750 for the loss of the car by fire, and under the heading "General Conditions" there were numerous provisions, including the following:
"Unless otherwise provided by agreement in writing added hereto, this company shall not be liable for loss or damage
"Property Excluded (a) To robes, wearing apparel, personal effects, or extra bodies (except that this exclusion does not apply to Property Damage coverage); or
"War, Riot, etc. (b) Caused directly or indirectly by invasion, insurrection, riot, civil war or commotion, military, naval or usurped power, or by order of any civil authority; or
"Limitation of Use (c) While the automobile described herein is used as a public or livery conveyance for carrying passengers for compensation; or while rented under contract or leased; or while the automobile insured hereunder is carrying any person or persons for a consideration, either actual or implied; and this policy shall not cover if the automobile insured hereunder be used even for one time for rental, hire or livery or for the transportation of passengers for hire; or operated in any race or speed contest; or while used in any illicit or prohibited trade or transportation; or, while any trailer, automobile, or any vehicle of any description is in any way attached to or connected with the automobile described in this policy, unless the policy is extended by endorsement to so cover, or while the automobile insured hereunder is used for the carrying of explosives not used in connection with the operation of the automobile, or for other unusual or hazardous purposes, or for any purposes not specified in Warranty 4. * * *"
The following stipulation under the foregoing heading of "Limitation of Use" was relied on by the indemnity company as showing that the risk of loss of the automobile by the fire which destroyed it was expressly exempted from the operation of the policy, to wit, "or while the automobile insured hereunder is used for the carrying of explosives not used in connection with the operation of the automobile." And that is the principal question presented by appellant on this appeal.
The case was tried without a jury and the trial judge has filed findings of fact and conclusions of law which appear in the record. He found that the automobile was destroyed by fire during the life of the policy; that due proof of loss was furnished the defendant and liability denied. Further findings by the court were as follows:
"I find that at the time said automobile was destroyed by fire the plaintiff was carrying in said car a can or container containing six or seven gallons of gasoline which was being carried from the plaintiff's place of business in the City of Denton to the city's airport, to be used in washing down or cleaning the motor of an airplane belonging to the plaintiff; that the plaintiff intended to carry it out to the airport in one of his trucks, but finding that it was at that time being used *575 for something else and in order not to delay the work of cleaning said airplane motor, the plaintiff put said can of gasoline in the back of his car, intending to go directly to the airport, but having received some complaint about the grade of gravel being hauled by his trucks, the plaintiff, instead of going directly to the airport started out to the gravel pit and while on the way the back end of the car suddenly burst into flames which destroyed said automobile.
"I find that this was the only time that the plaintiff had ever transported or carried gasoline in said automobile not connected with its operation; that the value of said automobile was approximately the sum of One Thousand Dollars ($1,000.00). * * * (Then follows a copy of the provisions in the policy set out above.)
Appellee invokes the general rule that a policy of insurance is to be construed favorably to the insured, and it is argued that the word "used" in the provision relied on by appellant should be construed to mean a continuous or habitual use rather than the use on one occasion only. Another stipulation in the same clause of the policy reads: "And this policy shall not cover if the automobile insured hereunder be used even for one time for rental." (Italics ours.) And it is further argued that the absence of the same stipulation relating to a single use in the provision in controversy implies that the use there mentioned was intended to mean a continuous use.
One of the decisions relied on is Fireman's Fund Ins. Co. v. Shearman,
The facts showed that the fire occurred as the result of a temporary use of the premises as an experiment for lighting. In the opinion the following was said: "Forfeiture clauses in policies are to be `construed most strongly against the insurer' (New Orleans Insurance Co. v. Gordon,
In Springfield Fire Marine Ins. Co. v. Wade,
The evidence showed that the fire originated from gasoline which had been brought on the premises for cleaning purposes and left in a tub in the kitchen, and started from the throwing of a lighted match in the tub by the plaintiff, who supposed that it contained water. We quote the following from the opinion in that case:
"As the word `kept' means that the prohibited article must not only be upon the premises, but must be there for keeping or storing, and not merely upon a temporary occasion for a different purpose, it follows that there must be some degree of permanency in its continuance there. The word implies all this. The word `used' is employed in immediate connection with `kept,' in order, we think, to extend the provision so as to exclude the idea that the article must be stored or deposited on the premises. But the purpose in the use of each word is to provide against the same danger, viz., that which would arise from the habitual, constant, or continued exposure of the property through the presence or use of the article. * * *
"In Mears v. Insurance Co. [
To the same effect are the following authorities: 26 Corpus Juris, p. 222; Bouchard v. Dirigo Mutual Fire Ins. Co.,
In passing on that provision the court said:
"The evidence shows that, on two or three afternoons during the Fair in Dallas, Tom Hill, appellee's son, used the car without appellee's knowledge for carrying passengers for hire to and from the fair grounds.
"It is urged by appellant that such use of the car violated the provisions of the policy and therefore annulled it. We do not believe the use of the car for the limited time it was used breached the warranty clause in reference to the use of the car for hire, etc. The words, `that the automobile hereby insured during the term of this policy shall not be used for carrying passengers for compensation,' etc., were intended to mean that the automobile should not be continuously used for that purpose for any length of time, or, in other words, the owner should not make a business of using said automobile for carrying passengers for hire, and it was evidently never contemplated that the casual use of it as made in this instance would work a forfeiture of the policy." (Citing cases.)
We believe that the stipulations in the policies involved in those cases distinguish them from the present suit, in that some of them were provisions for forfeiture of the policies and in others were, in effect, warranties against certain uses.
We have reached the conclusion that the stipulation invoked by the defendant in this case cannot be construed as coming within either of those classes. Nor do we believe that the inclusion of the stipulation in controversy under the heading of "General Conditions" or the inhibited use for rental for "one time" only, indicates an intention that the term "used" in the provision relied on by the defendant should mean an habitual or continued use and thus modify language which is in no sense ambiguous, and which, in our opinion, shows that the risk there indicated was excepted from the contract of insurance which preceded that stipulation.
In British America Assurance Co. v. Miller,
Fireman's Ins. Co. v. Alonzo,
Matson v. Farm Buildings Ins. Co.,
In Northwestern Nat. Ins. Co. v. Westmoreland, 215 S.W. 471, by the El Paso Court of Civil Appeals, it was held, as shown in the syllabus: "Under a policy of fire insurance providing that the company should not be liable for loss caused directly or indirectly by explosion of any kind, if a building fell by reason of an explosion before fire broke out, the policy was terminated by the falling of the building."
In that case it was further held that the burden was on the insured to prove that the loss did not come within that exception.
Travelers' Ins. Co. v. Harris (Tex.Com.App.)
The evidence tended to show that the insured came to his death while endeavoring to enter a moving passenger train and while on a railway roadbed. The defendant insisted that the burden was on the plaintiff to plead and prove that the death did not fall within the terms of the exceptions set forth in the policy. In the opinion by the Commission of Appeals, which was expressly approved by the Supreme Court, this was said:
"The consideration of these questions has necessitated a very comprehensive search of the authorities, in an effort to ascertain the rule which on principle should be applied. The courts of the country are not a unit on the application of the rule governing in such cases.
"The contra holdings of the court can, however, be accounted for on the difference in the construction of the contracts by the courts. Those courts which treat the contracts as being general, and the clauses declaring what they shall not cover as `stipulations added to the principal contract to avoid the promise of the insurer by way of defeasance or excuse,' hold that these clauses are defensive, and must be pleaded and sustained by the *578 insurer; while the courts which construe the exception clauses as `taking something out of the general portion of the contract, so that the promise is to perform only what remains after the part excepted is taken away,' place the burden of pleading and proof upon the assured to negative them by showing that his cause of action does not come within the exception.
"The latter construction of the contract and rule on the burden of pleading and proof is supported in the following cases: (Citing cases.)
"Cases which have been decided in other jurisdictions, announcing a different rule, will be found in notes under Starr v. Ætna Life Ins. Co.,
"In view of the decisions by our Supreme Court, and the indication made in granting the writ in this case, we are of the opinion that the burden rests upon the plaintiff to show that her cause of action does not fall within the excepting clause."
The testimony of plaintiff himself showed almost conclusively that the fire occurred as the result of the turning over of the gasoline in his car when he crossed a bridge, and that the gasoline leaked therefrom through the floor of the car onto the exhaust pipe and there became ignited; but the trial court overruled appellant's motion for an affirmative finding that at the time of the fire the automobile was being used for the carrying of an explosive and that the gasoline was not used in connection with the operation of the automobile; the court having made no specific findings on those points.
Under the authorities noted, we conclude that the court erred in finding that the word "used," employed in the stipulation in controversy, should be construed as an habitual or continuous use, and that it did not apply to the single use of the automobile; and we conclude further that the burden was on the plaintiff to allege and prove that the loss did not occur within the terms of that provision which excepted that risk from the insuring provisions of the policy.
Accordingly the judgment of the trial court is reversed, and the cause remanded.