Pennell v. United Insurance

to sell its requires manufacturer nothing in such laws purchaser who wishes or dealer product manufactured sell, may or contrary, manufacturer such buy same. To sell, pleasure.” at its refuse 52, 1982, it is stated: S., Monopolies, Section

In 58 C. J. held, law, a contract it has been “At common goods agrees products manufactured or to sell all manufacturer corporation un- person is not produced by to one or him or tending creating trade or as in restraint of lawful as allegation proof to show monopoly, in the absence create will result.” conditions these Article this contract does violate therefore hold that We Statutes, 1925, 7428, it is not contract Revised Civil in restraint of trade. reversed, hereby judgments courts below are of both pro- trial for further

and this cause is remanded to the court holdings ceedings herein. consistent with our sitting. Associate Justice Garwood not

Opinion delivered November 1951. Incorporated. Company, Paul Pennell v. United Insurance No. A-3203. Decided October 1951. Rehearing overruled December (243 572.) 2dW., Series, Brown, H. Sherman, David Doss, L. Robert of Deni- son, petitioner. The Appeals Court of holding Civil jeep erred in a that “private is pleasure a exclusively automobile type”. car holding petitioner Also in if even not entitled indemnity to payments double which were delin- quent filed, at the time suit was he is nevertheless entitled to single indemnity payments judgment at time was rendered petitioner. Ziegler, Travelers Protective Ass’n. v. 250 S. W. 1115; Gibson Am. General Life Ins. 1070; 2d S.W. First State Bank of Barnett, Ravenna v. App., 48 Texas Civ. 82, 106 S.W. 182. Freeman, Wolfe, Sherman, Bryant, Henderson & for re- spondent. Smedley

Mr. Justice delivered the Court. Pennell, Petitioner Paul accidentally injured who was while driving performance a of his duties aas rural mail carrier, against filed respondent, this suit United Insurance Company, Inc., indemnity to per month, recover of $200.00

alleging injury inability perform caused each every duty pertaining occupation. to his agreed company by pay the term of the $100.00 per injury month for total loss of caused accidental time agreed pay monthly indemnity further to double the the event injury driving riding pri- insured’s “while within exclusively type”. vate automobile principal question right petitioner in the case is as to the indemnity. recover the double court, district after trial before which found that the motor petitioner private vehicle pas- driven was “a senger exclusively type”, ren- judgment petitioner against dered respondent total $4964.00, sum of indemnity, attorney’s which included double penalty. fees and Appeals, Court of Civil with Chief Justice Bond dis- senting, judgment reversed and rendered

petitioner nothing, holding take was not entitled indemnity recover respondent paid pe- had titioner the full amount of the at the rate per month that was due when the suit was filed. 238 S.W. Appeals, The Court reviewing of Civil after the evidence authorities, expressed number of the conclusion that all-purpose is “an car” exclusively and is pleas- “neither ure car nor freight-carrying type, all”; but a combination of a and held “as matter of law that jeep private passenger involved here a is not ‘exclusively pleasure type’ car and therefore not within coverage indemnity of the provision double policy.” of the petitioner’s argument attacking The substance of the above quoted holding ambiguity is that policy’s descrip- there is tion indemnity of the provision automobile to which the double applies, Appeals the Court Civil has resolved the ambiguity company, contrary in favor of the insurance to the respondent placed contrary construction that on the and jury’s to the verdict. ambiguity. policy provides

In our no The there is injured injury sustained for when is riding driving any private auto within “while or exclusively pleasure type”. The words are mobile contends, find, petitioner the word simple. do not We ambiguous description or that “exclusively” to be causes “Ex- ambiguity “placement” of word. from the arises description clusively” gives emphasis as an automobile to the clearly mean pleasure type. words We believe the only applies indemnity provision to automobiles used are and intended to be that pleasure, constructed apply and automobiles constructed and does not agricultural freight in- carrying intended to be used for apply automobiles constructed purposes, and does not dustrial freight car- and for and intended used to be both agricultural purposes. rying or or industrial riding injured jeep in when is which testimony “just Willys jeep, 4- described him in his drive, By top”, wheel cloth with two another witness it seats. Willys jeep. is referred to as Universal design Two and construction witnesses testified as to the jeeps purpose they and are sold and intended testimony undisputed. fact is to be used. Their No issue of testimony many important raised. The differences be discloses jeep ordinary tween the testimony and the automobile. photographs jeep the record show rugged, beauty that body, it is a uncouth vehicle without of line or suggestion comfort, obviously with no intended for pleasure. hard jeep rather than for like service is not built rougher ordinary passenger car. It and its seats are ordinary pleasure harder. The car has a two-wheel drive and jeep gives jeep power has four-wheel drive. This more and it is better roads that not hard surfaced and are better ordinary in the mud jeep equipped than the vehicle. The with gripping straight non-directional tires on which the ribs run across the pull face of the tire enable the vehicle to back ward or forward. The seat on the is thinner than the seat ordinary passenger car, on the and it has the minimum amount springs. speeds low, six has forward and it has gear heavy duty pulling. low It has two standard drive operate shafts which front and rear differentials as standard equipment, places and has also for two other shafts front purpose rear. operating These are for the front end or rear mowers, anything end requires power winches “or that take operate.” ordinary passenger off to The automobile does not have jeep these. The tread of the is narrower than' the standard auto gives operation muddy mobile tread. This more effective on jeep pull grades roads. pull made to the mud and to on go and will where and inclines. It useful in mountain areas wagon advantage oper- a It a distinct for cannot follow. has rough country. icy roads, ation on or across on roads jeep adapted industrial standard to various attachments welders, sprayers, equip- compressors, diggers, fire electric ditch Jeeps farmers, pumps. ment to rural electrical and are sold associations, companies oil and industrial users. other jeep performance work as

Petitioner used the of his put a rural jeep carrier. mail He had an extra seat that he Saturday evenings Sundays so that and his he family convenience, go pleasure, could use it for church engagements. social He testified that he another owned carrying mail, at the he automobile time first Chevro- Oldsmobile, injury let and later an sold after his he jeep carrier, carrying his substitute it in who used testimony mail. jeeps There is can used and often are pleasure, used for various forms of but this evidence does not change fact, conclusively proved by evidence has above, jeeps been set out are built and intended to be used purposes and pleasure, pleasure, are used other than as well as for is, jeep Appeals as the Court Civil ex- presses it, agree all-purpose “an car”. We with that Court’s holding jeep that “as matter of law involved here is not private passenger ‘exclusively ” type.’

No case has been cited and we have found none that classi- jeep except fies the (U.S. Union R. Pacific Co. v. United States Claims) Court of Supp. 91 Fed. com- 117 Ct. Cl. 534. The mittees jeep pur- of the railroads had classified rate poses passenger freight vehicle, as a vehicle rather than a Department pay War had declined to on that basis. The company suit was the railroad for the difference in the two shipments court, reviewing rates on over its lines. The after at length history jeep during and the made use war, jeep held primarily that the wartime correctly freight car and was purposes. so classified for rate hauling states that while the was used for many respects and was all-purpose car”, “in an there was evi- dence per eighty it was eighty-five as used the war from cent, personnel and reconnaissance. decision is not authority that the is a type.

Spence Washington App. National Insurance 320 Ill.

547 in- an accident words of 128, the 149, construed E. 2d 50 N. ex- the type automobile passenger “private policy, surance as those substantially same type”, the pleasure clusive case, as instant policy provision of the pick- Ford model half-ton ordinary applying standard to án truck was the although that truck, plaintiff contended up the automobile the insured a as to used the the insured proved that pleasure type had because she high- up picked on the persons he transporting whom truck for way family and others church, transporting his and for at for the judgment places. court’s to plaintiff and other The trial church de- for the rendered was was reversed fendant. by closely point decision presents in

Petitioner as Supreme Tennessee, v. Bid Aetna Life Insurance Co. Court of well, 627, named 192 Tenn. 241 595. S. W. accidentally paid killed “while amount to if insured were * * * * * * riding pleas private in type”, policy provided ure car the term “automo and the motorcycle should mechani bile” not “include a vehicle or navigation”. cal while devise for aerial insured was killed riding Judg pleasure trip pick-up on a truck. in one-half ton placed benficiary ment for the was affirmed. The decision part quoted, on the exclusion clause and it to be above observed that as “of described the automobile one type” “exclusively pleas not as one type”, ure car here.

Decisions the Iowa and the North Carolina courts hold description the same words of as those construed above, “private passenger Tennessee case discussed type” pick-up do not include a Ford truck truck, although or a may Ford one and one-half ton the truck transporting be used and passengers. is sometimes used for Co., Dirst v. Aetna Life Insurance 232 Iowa 5 N. W. 2d 185; Lloyd v. Columbus Mutual Insurance 200 N. C. E.S. 386. The directly decisions above discussed are not point. support Three of them at least tend to the conclusion Appeals, approve, Court Civil which we and the other

two, stated, for the authority reasons are not for a different conclusion.

Respondent at first construed indemnity pro applying vision of driving. monthly payments It made six to him of each April 12, disability from October bearing drafts, statement each payments made were agreed claimant acceptance draft specified, indemnity the the date of all inwas full settlement the double in-' being construction of April 12, 1949. This last pro- if the material demnity provision by insurer would be the because, we ambiguous, not material it is but vision were Hart, Texas held, ambiguity. v. 143 Richardson is no have there Highland Corp. 563; v. Farms 392, 395-396, 185 2d S. W. 627; 474, 481, Fidelity 82 2d Par- S. W. Trust 125 Texas 306, Trainmen, 2d 85 S. of Railroad W. rott v. Brotherhood 310, application of refused. for writ error petitioner’s application point second in

We sustain the Appeals to complains of failure of the of Civil which the Court judgment, judgment, in his render or to affirm trial court’s the single delinquent indemnity payments were favor for the judgment was rendered when the suit was filed and when the holding Appeals, in the nothing in trial court. The Court of Civil agreement unpaid pay on the was due and per month, monthly applied payment of installments1 May 12, 1949, inclusive, 12, 1949, one-half- from to October payments per of of the six month that had been each of $200.00 by payments to the made above described. drafts Those of made under mis extent one-half of each of them were liability part respondent under take of law on the of as to its suggestion policy. in There is no the record that there was peti of mistake of fact as to kind in riding injured was or mistake fact. tioner when other indemnity question provision whether policy applied jeep, answer determined re to the3 to which liability indemnity, spondent’s nonliability for double general principle applicable one of law. The settled here individuals, money voluntarily paid on claim “as between knowledge right, facts, with full all in absence of fraud, duress, compulsion, merely cannot recovered be back payment ignorant party because the at the time of of or 856, liability.” p. mistook the law as to his 40 Am. Jur. Sec. Alford, 267, 271, 757; Texas See also Gilliam v. 69 6 S. W. City Feeser, 365, 266; of Houston v. 76 Texas 13 S. v. Pitts W. Elsler, 347, 518; Slaughter, 87 28 Texas S. Scott v. 80 W. S. W. 643, application for writ of error refused. opinions against some the suit lessees lessors recovery money paid of bonus for leases under Re-

linquishment by respondent authority Act are cited a mistake under indemnity payments were made disting- may question presented cases fact. those respects question here considered. uished in several from the right opinions reveals that And examination of the primarily sustained breach lessee to recover of lessor was warranty, Navarro consideration. See or failure of Cross, 276, 677; 272, 2d Sano- Oil Co. v. 139 Texas S. W. Allison, 480, 482, affirmed lind Oil Co. 121 W. 2d & Gas v. S. 540, Empire 267; v.

133 Texas 2d & Fuel 129 S. Gas Co. W. State, 21 W. 2d in 121 Texas 47 W. affirmed S. ap- 265; 448, 452, Corp. Tippett, 2d plication Shell Pet. S. W. writ of error refused. Judgment against should re be rendered spondent monthly for the amount installments of $100.00 May 12, 1949, is, each 12, 1950, inclusive, from to March for all unpaid installments and due at the time of the trial in cent, court, together district penalty per with twelve attorney’s

and reasonable fees under Article 4736 of the Revised Civil disposition Statutes of 1925. Final of the case would be made opinion here but what in our on error part overruling the respondent of the objections district court in made hypothetical questions propounded

to to witnesses who testified as to in opinions what their would be reasonable attorney’s fees. hypothetical questions The stated as assumed the facts: petitioner’s injury, nature of the policy, substance the in- cluding indemnity provision, company’s payment the of doüble for six months and failure its thereafter payments, to further make that the for a runs maximum years, plaintiff five if that the is entitled in- to double demnity recovery the maximum per would be month $200.00 April 12, 1949, from per to October or month $100.00 period only single for that if is indemnity. he entitled to question propounded to one of the witnesses asked wit- plaintiff ness to required assume that employ to an attorney prosecute to his claim under the for accrued disability permanent benefits “and to establish of total and period years for a disability, of five from the date of is policy”; maximum under recovered question plaintiff totally stated further that if the disabled en- he is per titled to at least years. hundred dollars one month for five of the One witnesses testified in that his $2500.00 would be reasonable fee. Each of the other two $3000.00 objections questions answered made to the $2500.00. were: in them that were in were stated and facts that elements questions varied in the evidence; down laid that the standard ques- policy; that provisions from the terms controversy; were amounts two different tions assumed that beyond of conditions the existence questions assumed that right re- they assumed the scope policy; and that years future period in the monthly payments over a cover abe would that past. answered and in the $2500.00 attorney’s fee. reasonable that questions in the statements

The inclusion plaintiff was years, period ran for a of five permanent employ attorney required establish total to years, plaintiff, if disability period for a of five years, payments disabled, monthly five totally entitled estimates reasonably to base their would cause the witnesses recovery recovery or on a maximum reasonable fees testimony wit- period years. maximum five they, two or at least nesses on cross examination shows recovery. them, a maximum did thus base their estimates abe would One of them testified that $2500.00 $3000.00 you have involved reaches what fee “if the amount reasonable your hypothetical question”, and further me in stated to “predicated his answer was on the maximum.” Another ar- elements considered witnesses testified that one of the riving money attorney’s amount of at fee is what reasonable involved, testifying a rea- and further fee, question, sonable he took into account “as stated involved, figured, roughly the amount I between $6000.00 recovery $12,000.00, depending had for whether single indemnity indemnity.” And he testified that or double figure” “theory anticipatory of his was based on the “$2500.00 breach”. submitted,

The court should not it did over re have as spondent’s permanent inability objection, an as to to issue work, being agreement indemnity pay no to there permanent disability. agreement pay for in to monthly continues, long- inability installments as to work as having years. but in effect not to exceed five found petitioner’s inability had continued until the time to work trial, monthly past unpaid there due and in were six stallments when the filed and eleven at the time of the suit was prayed petition trial. Both the trial and the trial amendment recovery judgment due under the the amount alleged. allegations anticipatory There were no breach. 551 install- suit “was for his states Petitioner brief were already policy; future installments ments due under the policy, sought.” repudiated but Respondent not has not contesting right recover double it, to stands on allegations contesting petitioner’s trial and on the brought under cir- inability In the suit to work. stated, petitioner entitled to recover would not be cumstances Co., yet Insurance v. Aetna Life installments not due. Sanders 968; 169, 173, 43, 146 2d 173 A.L.R. Universal Texas 205 S. W. 344, Sanders, 102 Texas Life & Accident Co. v. 129 Insurance English, 405; v. 96 S. 2d York Life Insurance W. New Co. Texas 72 S. 58.W. yet recovery

Since there could be no installments due, they measuring should not into be taken consideration attorney’s English, fees. New York Life Insurance v. Co. 268, 274, 58; Atkins,

Texas 72 S. Insurance Co. W. State Life S. 292. The trial re W. courts have sustained should spondent’s objections hypothetical questions to the ex requiring tent of permanent the elimination of references disability, period years recovery the maximum of five and the installments to October 1953. judgment recovery to be rendered here of install ments due at prejudice time the trial is without rights parties concerning either of the hereto future install ments. Great (Com. Southern Life Insurance Co. v. Johnson App.) 25 S. W. 2d 1093. judgments of the district court the Court of Civil Appeals are reversed and peti here rendered for

tioner, against Pennell, respondent, Paul United Insurance Company, Inc., together $1100.00, with as twelve $132.00 cent, per penalty, with interest on total sum of cent, April 7, from per per 1950 at six annum. The issue as to attorney’s being severable, fees the cause is remanded district court for the trial of that issue. Rule 503. Trevino v. American National 500, 506, Insurance 140 Texas 2dW. Appeals Costs the Court of Civil are taxed against petitioner against and costs in this respondent. Court Opinion delivered October Mr. joined Sharp, Justice Justices Griffin and Smith Hickman, dissenting.

Chief Justice disagree

I majority with the holding the case, not is in this record the by petitioner, under

jeep used “exclusively passenger private automobile under recover to petitioner not entitled is type,” and that the insurance. of provision indemnity of respondent against recover this suit filed Petitioner benefits, at- benefits, plus monthly disability double etc., and health fees, costs, an accident torney’s under provided undisputed respondent. It issued month, five per to exceed payment rate for at the of $100.00 time, resulting injury in total loss years, for accidental * * * by the injury’ sustained if ‘such amount” double that riding private pas- any driving (1) within Insured senger while pleasure car * * * causing passenger, injury the loss due if owner or directly damaging car.” automobile or to the of such special issues answers to the submitted returned Upon petitioner. the trial court entered favor of judgment this verdict petitioner per from the date for month for $200.00 trial, allowing date after of the accident to the credit respondent petitioner, plus previously paid by but $1200.00 attorney’s penalty past due installments. fees and n court, Appeals, by a divided reversed Court of Civil court, judgment law and held “as a matter of trial jeep private involved here is not a type,’ within ‘exclusive of and therefore not coverage indemnity provision policy,” question. respondent and rendered on that 2d 602. W. petitioner injury The evidence shows that at the time of his carrier; family was a mail rural that he used the for all purposes mail; transporting and as a means it private regarding was his He testified automobile. in detail jeep; the mechanism and construction also it was compartment shown that had no attachment freight, freight carried, necessarily and if was to it had put designed passengers. to be in the rear seat Mr. Williams injury testified that after the he purchased him, carrying automobile from and used it for rough road; mail purchased over 50-mile he replace a sedan, using 2-door Ford which he had been purpose. such Brown, Mr. Deputy Highway Department Chief for the Grayson County, January 1, 1947, testified that since he has county, registration in that of the records custodian been Jeep “Willys registered a and 1948 and in 1947 passenger car.” model, as classification handling company general manager Tuffer, of a motor Mr. trucks, as an Packards, Jeeps, testified Hudsons, Willys and Reo only differ- that expert respondent. He stated witness pleasure that is Willys cars jeep a and the other ence between only a 2-wheel drive, cars jeep and the other a drive, a 4-wheel has make-up appearance different jeep is and that springs. in the construction of the and some difference there is many jeeps He he sells to mail carriers further testified that get mail, carrying jeeps due fact that around to the rough automobiles, mud better than and that and over roads to farmers for the same reason. further he also sells some He jeep passenger car, pas- testified a that a and that it hauls sengers, passenger some and there are cars pleasure type. being He enumerated buses and trucks as not pleasure pleasure type He a cars. stated that truck not a passenger car, explained but it is a car. He the dif- Packards, ference between the Hudsons there springs, was power, difference in the construction of the horse seats, and the construction of the and that there is slight types automobiles; in all difference there are many types pleasure type; of cars exclusive jeep one pleasure difference between the other cars power. drive, jeep gives has 4-wheel which it more expert Mr. Shiflett tstified for re- automobiles spondent as differences between the constructural fea- jeep tures of a automobiles, other gave and in effect his jeep exclusively was not type car. He also testified that he owned a personal use, primarily for his fish, to hunt and and that he got pleasure use; out its that he had friends who owned jeeps personal use, and some used them to hunt and fish.

The trial court special submitted several jury issues to the petitioner. were answered in Among favor of special issues Special submitted was Issue No. you follows: “Do find preponderance from a of the evidence that the motor ve- hicle driving which Paul Pennell was on the ques- occasion in tion private passenger was a exclusively type?” answered, To which “It was.” precise question for determination is whether this record private question was a that the

presents as a fact issue type.” “pleasure passenger automobile suit rights parties to this of the of The determination in- insurance of depends upon of the construction policy does light us. The here, record before in of the volved passenger by “any private automobile meant not define what is type,” does define exclusively pleasure car nor of the “private passenger auto- type” term “pleasure nor the term car mobile.” trucks, automobiles, as are of There several classes —such question jeep in was owned

busses, other vehicles. injury private as a by petitioner operated at the time of his designed exclusively for the automobile, passenger and it was “pleasure type” to passengers. a car transportation It was of auto- family. jeep, like most other and his insured army undergone changes: mobiles, in the It was used has areas, went, army both combat noncombat whereever the soldiers, car in by many a car. of as classes design jeep. model, a question similar to the wartime States, Supp. In R. 91 Fed. Union Pacific Co. United gave extensive Ct. Cl. the Court of Claims theory jeep: of the case turned whether or wartime That vehicle. The not the should be classified as primarily find court the wartime said: “We passenger car.” insurance does not define what meant

“any private passenger exclusively type,” construing and we have no There- found case same. compelled try are fore we to look elsewhere ascertain its meaning. gives Dictionary New International various Webster “Pleasure,” definitions as follows: gratification mind; agreeable “1. State the senses or emotion; excitement, relish, happiness pro- sensation or or by expectation enjoyment something delight- good, duced or ful, satisfying; delight; enjoyment; joy. or perfers “2. gratifying What will or dictates as or satis- fying; hence, will; choice; wish; purpose possessive. —with pleases delights; source, That or a cause, “3. object delight; gratification. pleasure; joy; Pleasure-giving quality; pleasantness. “4. amusement; sake; its own gratification “5. Sensuous dissipating en- self-indulgence; diversion; frivolous

sport; gratification.” joyment; sensual just by the definitions “pleasure,” shown The word attempt- meanings. quite obvious that many It is

quoted, has ing passenger “any private to construe light definitions various type,” results, and it is “pleasure,” confusion inevitable of the word language Certainly classify impossible thereby car. looking provision words, at this is not In used clear. other standpoint, practical term becomes mean- from a ingless. policies, ordinary

The construction insurance well as contracts, governed general by language certain rules. The given policy used struction, should be fair and reasonable con- in order to sustain the insurance and not it. defeat ambiguous meaning appearing Terms of in the are to be Respondent construed the insured’s favor. policy, wrote the they against and if its are terms clear will be construed company insurer. The insurance could have defined the mean- ing provisions quoted above, meanings of the and such so de- ordinarily by fined would be enforced courts. The applied light should construed and in the of the facts of Kemper the case. v. Assn., (Tex. Police & Firemen’s Ins. Com. App.) 978, 981, reversing (Civ. 44 2d S. W. App.) 28 S. W. 1111; Fidelity 2d Barnes, Union (Civ. Fire Ins. Co. v. App.) 279, 281, 293 refused; writ Colony W. of error Old Ins. Co. Hardaway, (Civ. App.) v. 372, 14 374; S. W. 2d Piper Dennis, (Civ. App.) 308; 307, 274 Jur., S. W. 701, 24 Tex. p. sec. 25. Court, This in the case of McCaleb v. Casualty Continental 65, 679, 132 Texas 116 2d S. W. construing said: “In

language policy, ambiguous used in if it is or contains in terms, consistent in order to at the arrive true intention of the expressed parties therein, the well-known rule that insurance strictly against contracts should be construed insurer, and insured, in favor of the will control.” Jur., See p. 705, 29 Tex. 29; Jur., sec. Tex. Supp., Ten Year 1937-1947, 6, 153, p. Vol. sec. 29. cogent very A persuasive sustaining reason for judgment of the trial court by is furnished the acts of re- spondent. knowledge full facts, With respondent admit- liability, ted voluntarily to-pay petitioner elected under the undisputed policy. provision of the It respondent $1,340.00, paid evidenced sum (1) Pennell, by payable as follows: one for four to Paul checks 1948; 12, (2) $200.00, one for dated $325.00, dated November January 12, 12, 1948; $200.00, (3) one for dated December 1949; April 12, mak- (4) $615.00, 1949. In dated one ing payments indemnity provision of the said under the double policy, respondent ing upon placed its own construction the word- by provision own definition and its here same considered classification of the vehicle involved “passenger type.” During respondent request did not trial term be jury, except defined for and failed to because such definition charge court. not included Law, Couch, Cyclopedia 1, 330, In p. of Insurance Vol. relating given a the rule to the construction to be contract of insurance which has been construed .the insurer is stated as have, by parties own, follows: “Where the certain acts their upon placed a construction terms doubtful contract of in generally surance, adopted by construction this will be against supported by many rule courts them.” This de Travelers’ Protective Association of America v. cisions. See Ziegler, 1115; S., Insurance, (Tex. App.) Civ. J. S. W. C. p. sec. 292. Superior et recent case of Oil al. v. Co. Stanolind Oil al., et. 150 Texas 240 S. involved

& Gas Co. W. ambiguous by claimed to be and construed the a mineral lease opinion this Court said: parties.-In the lease, parties construed this and since it is am- have “The given by the the biguous, will follow construction the courts parties. X-Ray Star Gas Co. Gas said Lone “This court 504; (5-7) 508: 2d loc. cit. 164 S. W.

Texas “ contract, original trial parties to the also the ‘The by the defend- contract as contended such court construed ant; Appeals, with considerable diffi- Court Civil while the plaintiffs. by If culty, as contended for there is construed it meaning a contract like the before one doubt as the interpretation upon may placed it us, the courts consider par- of the by parties In this instance the acts themselves. placed they mutually indicate the construction ties themselves including time, done in its the acts upon at the the contract controlling great if not performance, and same .is entitled to interpretation of the generally follow weight. will Courts mutually placed onstruction thee indicate themselves ties high- constitutes by parties themselves upon a contract by them was done that whatever intention of their est evidence as under terms its was done contract performance of the in the ” done.’ be same should and intended they understood I reasoning opinion, as majority fallacy of the than assuming of other makes it, cars see type.” There “exclusively Jeeps Willys are “exclusively highways which is on the car in use no common language strictly construed. type,” if that be pleasure car should assume that it was intended must We law, hold, a matter of we cover some cars. Should car, example, cover, for a Ford intended to Jeep, conclusion Willys I find solid such can no basis law. relating ambiguous language

In view indemnity provision policy, of such and the construction provision by company petitioner, in favor insurance by jury. fact for determination issue of was raised Since question, fact the issue of was raised the evidence petitioner, favorably and was answered holding issue, Appeals erred in that no Court of Civil such law, a matter of raised. judgment Appeals of the Court Civil re- should be

versed, trial court should affirmed.

Opinion delivered October 1951.

Rehearing overruled December Employers’

Mrs. Etta Mae et al Wade v. Texas Insurance Association. 5, 1951.

No. A-3112. Decided December (244 W., Series, 197.)

Case Details

Case Name: Pennell v. United Insurance

Court Name: Texas Supreme Court

Date Published: Oct 24, 1951

Citation: 243 S.W.2d 572

Docket Number: A-3203

Court Abbreviation: Tex.