No. 3533. | Tex. App. | Mar 20, 1928
The question on appeal is that of whether or not the proviso in the policy, restricting the liability of the company in case "there shall be any other tornado insurance on said property" to "only a pro rata" of any loss that may occur, will apply in the special facts of the present case. It is believed that the proviso cannot avail the appellant in the facts and that it is liable to pay the full amount underwritten by it. The pertinent and controlling fact, as agreed to, is that:
"The loss to said roof and property was the direct loss occasioned by hail, and same was not damaged to any extent at all by the accompanying wind."
The policy of the Hanover Company did not cover loss by hail. The undertaking of the appellant company was to pay the damage directly caused to the roof of the house either (1) by hail as the sole force or agency in the damage, or (2) by hail accompanied by a windstorm as two forces present and in union as an active agency in the damage. That is the plain meaning of the "hail damage clause," which expressly insured against damage "by hail, whether accompanied by wind or not." But as the proviso had in view restraining and imposing a qualification on the provisions immediately preceding it, its meaning and effect is of importance. From the language of the proviso it is evident that the restraint or qualification was designed to have application to the one particular only; namely, of damage directly caused "by hail accompanied by wind" or tornado, in case such two forces, of hail and tornado, are present in union as an active agency in the damage to the roof insured. The limitation is expressly made of effect conditionally; namely, "if there shall be any other tornado insurance on said property." And the purpose of the condition, as is evident, is only to make a proportionate contribution to the loss, "pro rata with such other tornado insurance," in case damage is directly caused by hail and tornado as two forces in union as an agency of damage, even though "the other tornado insurance" does not cover damage "by hail." The proviso does not, by language or intendment, undertake to restrict or limit the liability of the company to a pro rata payment of the loss in case the damage *547 is directly caused wholly by hail. And such intent not appearing, the proviso must be strictly limited to its terms.
The proviso may not be construed, as insisted, as meaning to restrict the liability of the company to a pro rata of loss at all events, even though the damage was occasioned wholly by hail and not "to any extent at all by the accompanying wind," upon proof merely of the existence of "other tornado insurance."
The Judgment is affirmed.