*2 ROBERTSON, Before CARVER and WHITHAM, JJ.
CARVER, Justice.
Ranger Insurance Co. sued its Aviation, Inc., policy holder Córtese, well as various heirs of Kenneth judgment against who had recovered Mus- tang for Cortese’s death in an accident, seeking a declaratory judgment Ranger’s did because the aircraft involved in the accident was neither scheduled on the nor was “temporarily used as the substitute for (scheduled) aircraft.” The trial court such denied relief to and we affirm be- cause we conclude that the aircraft a temporary accident was substitute for a Ranger’s Mustang aircraft scheduled on policy. consists of facts undisputed record
and documentary exhibits. issued liability policy Mustang effective Jan- uary year, covering for one a num- aircraft, including ber of a Cess- 18, 1973, September na 401 model. On Mustang agreed to charter the Córtese, group, including a music Oklahoma, Mississippi, performances Louisiana, departing returning from and Later, day on the same Dallas. agreement, Mustang’s manager charter 401 was disabled learned that their Cessna and he flown arranged for charter E-18, pilot, with an Beech Elliott, Airways. Robert of Roberts Airways agreed to divide the charter fee. On the Beech E-18 crashed after take-off Louisiana, Natchitoches, causing a result of a enterеd airport judgment 3. As death. Cortese’s Cortese’s heirs recovered District Court for United States their against Mustang in a feder- Divi- Northern District of Dallas al court proceeding adjudi- CA-3-74-843-G, sion in Civil Action No. cate the issue raised here. The administrator es- Linda policy Ranger primarily undertakes: *3 Córtese, de- tate of Kenneth Dominick pay “To of the on behalf sums Insured all ceased; and as mother individually and legally the Insured shall become guardian as and natural of Eric obligated to pay damages because of Kenneth Córtese v. heir of Dominick bodily disease, injury, sickness or includ- d/b/a, Robert’s Bromley Corporation, ing death, at timе there- resulting Aviation, Inc., Mustang Airways, from, by any person sustained ... [in- Aviation, Mustang Inc. is liable to the cluding ... oc- passengers] by caused an in this suit for plaintiffs arising currence and out of the owner- $280,000.00 plus interest and amount ship, maintenance use of the aircraft.” costs, wrong- of the sustained as result (scheduled aircraft including thе Cessna Córtese in ful death of Kenneth Dominick 401). aircraft, twin-engine of a Beech crash addition, Ranger’s policy undertakes: E-18, N50JR, registration number model that, “4. The agrees Insurer further September 1973. while an owned by the Named 18,1973, Mustang Avi- 4. On Insured Policy, and declared in this ation, provide charter Inc. contracted to withdrawn frоm normal use because group service to the Jim for the Croce breakdown, repair, servicing, loss or question. in destruction, such insurance as is afforded Aviation, Mustang 5. Inc. owned a Cess- by this Policy air- respect to such aircraft, number registration na 401 craft applies with respect also to anothеr N21MH, by which was used regularly type aircraft of similar horse-power, Mustang in its operation. charter seating capacity, whether or not owned Insured, while 6. This Cessna 401 aircraft was listed temporarily used as liability poli- substitute for such aircraft.” and declared the aviation cy A9-175879. AC parties stipulated that the Beеch E-18 “was an aircraft type of similar Although Mustang 7. intended that tang’s Cessna Ranger’s policy 401.” also question in this charter be flown Cess- contained this exclusion: aircraft, na 401 the aircraft was with-
“5. The Policy EXCLUSIONS drawn from normal use because of a me- which this Endorsement is attached are required chanical breakdown which replaced deleted and are following grounded repairs.
exclusions: twin-engine 8. The E-18 Beech model ‘EXCLUSIONS. Unless otherwise aircraft, N50JR, registration in- number Policy insurance, vided in the the lia- in the crash in tem- question volved bility insurance afforded this Poli- under porarily used as the substitute for Mus- cy shall to: aircraft, Aviation’s Cеssna regis-
Jji n n ! n n Jfc tration number N21MH. (c) Liability assumed the Named aircraft, temporary 9. This substitute agree- Insured contract or by Bromley Corporation, owned was simi- ment, unless such lar withdrawn to the attached Insured to the even in Aviation, belonging Mustang Inc. as agreement: absence of such contract or required parаgraph 4 control- provision, CAB
ling policy Standard Upon Endorsement in aviation request, prepared the trial court findings, including: filed its AC A9-175879. to the mill. Company paying passengers
10. neither raised proved Soughern, the issue nor that the E-18 struck way, Ray On the Gertrude later, temporary who, against substitute aircraft was not a a judgment recovered similar aircraft as in paragraph described principal Ray as William’s William 4 of the CAB $25,000. Standard Endorsement Lumbermens’ holds that agent for liability policy, policy aviation number Ray ear to using Ray’s William was AC A9-175879. obligation William’s to haul his perform at a time that William’s paying passengers Aviation did not cоntractu- disabled; consequently, temporarily car was ally any liability assure for risks which Ray’s covered liability policy Farm’s did not arise as matter of law in the State “temporary car as a substitute automobile.” conduct of its business. Likewise, Elliott we hold first that the rec Mustang’s to haul char- and the Beech E-18 ord fails tо show that its was invoked tempo- ter while Cessna 401 was *4 at all because the adjudged to rarily disabled. heirs was not by Cortese’s “caused an occur arising operated passenger rence out of the In ownership, Lloyds, Dunlap maintenance or use of the with a number of buses scheduled Rang aircraft." busline thаt, er which also covered sub- argues plain liability policy the words of the on a March policy, Mustang’s (the absent stitute buses for disabled ones. On ownership 29, 1938, expected to Plymouth Beech E-18 was the bus owned Roberts Air undergoing way); Mustang’s (no passengers absent ticketed maintenance Packard, involved); repairs passenger maintenance was and a seven and absent (the personally and not sched- Mustang’s pilot by Dunlap use Roberts was an owned liability policy, was substituted employee Airways, of Roberts not Mus uled on However, there were tang’s); Plymouth. for the agreement its insurance with Mus passengers seven tickеted Mustang responds was never invoked. more than The that, the excess were hauled in taxicab. pilot while neither aircraft nor be pas- taxi was involved in an accident and longed Mustang, Mustang (in injured. Ferguson “use”) senger, Ferguson, sense of them perform both to for against Dunlap its charter when was tem recovered its own aircraft issued the liabil- Lloyds sued who porarily cite, disabled. $5000 Counsel does not that, Dunlap. Lloyds holds ity policy nor authority have we found Texas Packard was a “substitute though even applicable in these circumstances. We are was the so also Plymouth, for the persuaded reject Ranger’s vehicle” argument since both were a “substitute vehicle” adopt Mustangs upon taxi position in reliance Dunlap’s carriage for necessary perform v. Har Casualty Lumbermens Mutual Co. passengers, ticketed agreement hire will all leysville on could recover consequently, Ferguson (4th Cir.1966); Ferguson, Lloyds Ameriсa v. Likewise, we Lloyds. liability policy (5th Cir.1941); F.2d 920 and Roberts v. E-18 that, the Beech Gonzalez, hold since Elliott and F.Supp. (D.C.V.I.1980). Mustang’s for used as a substitute were Lumbermens', In William Dalton owned a perform 401 to its Cessna pilot and 1954 Ford insured for liability by State passen- to haul the charter tang’s charter Company. Farm Mutual Wil- Ranger’s liability policy ger, son, Dalton, Ray liam’s lived with his father heirs. tects Cortese’s uninsured. William and owned a 1955 Ford Inc., tick- Roberts, Airline son, a Caribbean Ray, worked at the same mill and his Juan roundtrip between San daily himself and his eted and William hauled of Caribbean The aircraft son, for Thomas. paid well who St. as other workmen a tail wheel flight lost scheduled for and forth to the mill. On passage, back safe- flight but landed during preceding would not William’s car repair. for taken out of service ly car and was Ray Ray’s he asked to drive start and arranged Airways and, stipu- Caribbean for Conquest negating similarity additionally, to carry Roberts and other ticketed Carib- the two aircraft were generally lated passengers, bean Conquest’s own tick- dissimilarity of type, horsepower of similar eted passengers, same sched- any, could de- seating capacity, if ule. retained Caribbean ¼ fare coverage. feat paid had collected and ¾ fare that, Ranger additionally Conquest. Conquest flight crashed and from con since arose killed Roberts and others on take-off. Car- charter, tract of it was entitled to a declara ibbean was Lloyds insured spe non-liability tion because its sought recovery heirs on the theory that the cifically excluded: Conquest aircraft was a “temporary substi- “EXCLUSIONS tute” plane. for Caribbean’s disabled Rob- erts holds that Caribbean “used” the Con-
quest pilot and aircraft
same use
Liability
c.
assumed
the Named In-
(and
Caribbean’s disabled
pilot)
or agreement,
sured under
contract
put
would have
had
Caribbean’s aircraft
unless such
would have at-
Likewise,
not been disabled.
we hold Mus-
even
tached to the Insured
in the ab-
tang used Elliott and the Beech E-18 for
sence of
or agreement
such contract
the same use the Mustang Cessna 401 would
put
to had the Cessna 401 not
agree. Ranger’s argument
We cannot
mis
been disabled.
takenly conceives the charter
contract
*5
Ranger
nеxt
that the rec
however,
Mustang’s liability,
the source of
ord fails to show that the Beech E-18 air
Mustang’s liability
the source of
was found
craft
was
a “similar type, horsepower,
pilot’s
the federal court to be “the
fail
and seating capacity” so as
qualify
to
the highest degree
ure to exercise
of care
the
as a substitute
Ranger
aircraft.
was a
cause of the air
proximate
[which]
parties
concedes that
stipulated
the
that
crash,”
plane
“Mustang
estopped
is
“The Bromley (corporation doing business
denying
Airways
that Roberts
was its
as
Airways)
Roberts
in
involved
the
agent and is
acts
[negligent]
liable
the
question
crash in
was an aircraft of similar
agent.”
Corp.,
of that
Bromley
Groce v.
type to Mustang’s
401, N21MH,”
but
(5th Cir.1980),
623 F.2d
1090
urges the stipulation is
equally
short of the
denied,
981, 101
1516,
cert.
450 U.S.
S.Ct.
67
required “similar horsepower” and “similar
(1981).
L.Ed.2d 816
We
hold
conclude and
seating capacity.” Mustang responds that
Mustang’s liability
was not one “as
Ranger did not
in
dispute
pleаdings
or
but im
agreement,
sumed”
contract
the two aircraft were
in
similar
each and
posed
Consequently,
for its own tort.
the
every respect and did not
the argu
raise
quoted
does not
a declara
support
exclusion
ment now offered counsel or the trial court
non-liability.
tion of
at
Moreover,
аnytime.
Ranger
since
has
the
Lastly, Ranger complains that
filed
prosecuted
for a
suit
declara
erroneously
trial court
concluded that
the
tion of
the
non-coverage,
burden
prove
issue of
“c”
any
(quoted
whether exclusion
dissimilarity between the aircraft was
foregoing
the
was
paragraрh)
applicable,
on Ranger,
Mustang.
not
agree
We
prior
in a
suit
against Ranger
that the
resolved
burden was on
Ranger
plead
prove
ar
Ranger. Ranger
fact
between
precluding cover
age,
gues
including
prior
that the
suit did
include the
dissimilarity when it sought
par
declaration of
identify
v. Córtese heirs therefore no
non-coverage. Evans
Co.,
(Tex.Civ.
General Ins.
ties had
to make the
court’s we already have concluded substitution (6th Cir.1955) that the in foregoing paragraph that exclusion “c” (aircraft) if the vehicle is only applies vision a declaration support the possession “in the or under control оf non-liability. Since the trial court reached extent and effect as the insured the same conclusion, correct the error in the trial (aircraft) the disabled car insured findings court’s the leading to correct con- except for its disable- is clusion immaterial. Talcott v. Valley ment.” the aircraft was nevеr Since 692, Loan, Federal &Sav. 611 S.W.2d possession or under control of (Tex.Civ.App. Corpus Christi no test the Rob- Mustang, then under Tanner’s — writ). poli- erts’ aircraft is not covered under the cy-
Affirmed.
recognize
I
words of exclusion or
WHITHAM, Justice, dissenting.
strictly
limitation
construed
should be
I
In
view
respectfully
my
dissent.
against the insurer and that
court must
in finding
triаl court erred
there was
the insured
adopt
urged
construction
coverage under the liability policy. Accord-
long
as that construction
not itself
I would
ingly,
reverse and render.
unreasonable.
v. National
Insur-
Glover
Underwriters,
755, 761
ance
545 S.W.2d
Mustang Aviation and Roberts Airways
case, however,
(Tex.1977).
present
arrangement whereby
entered into an
Rob-
insured,
urged by
the construction
provide
transporta-
erts
undertook
is unreasonable.
adopted by
majority,
Mustang paid
tion as carrier.
Roberts
Roberts, not
present
Mustang,
In the
case
collected Mustang
$952.63
$552.35
transportation
ser-
performed
entire air
passen-
for the сharter.
flew the
*6
required. Mustang
fly
vice
gers
Mustang.
of
No aircraft
Mus-
—not
airport
landings
passengers, arrange for
pilot employed
flew the
No
charter.
departures,
baggage
equip-
see to
by Mustang flew the charter. The aircraft
fuel
or service and
passengers
ment
pilot
was owned
Roberts. The
wаs em-
short,
the aircraft while in use.
ployed by
agreed
fly
Roberts. Once
myriad
func-
tang performed none of the
of
charter,
Roberts controlled the entire
in carrying
required
performed
tions
to be
operation
following
of the aircraft
simply
I
cannot
flight.
out
the charter
flight itinerary. The aircraft used was nev-
of an entire trans-
agree that substitution
the control
possession
er in the
or under
of
portation service is the substitution
Mustang. Mustang
temporarily
never
meaning
“use” of an aircraft within
Mustang
aircraft.
“used”
substitute
under this
policy.
To be covered
present
never in the air. The
case involves
Roberts’
must have been in
air
aircraft
the substitution of one charter
carrier
Mustang
possession or under the control
for another charter air carrier rather than
effect as the dis-
to the same extent and
the substitution
an aircraft.
have been
Mustang
aircraft of
abled
one
present
case
to be
appеars
The Roberts’
except for its disablement.
impression in
The majority
first
this state.
therefore,
not,
the Roberts’
aircraft was
Ferguson,
v.
Lloyds
relies on
America
under the policy.
covered
not
(5th Cir.1941);
F.2d 920
Lumbermens Mu-
Moreover,
impli-
I
with the
agree
Casualty
Harleysville
tual
Co. v.
do
(4th
cation,
majority opin-
if not
Cir.1966);
holding,
See Croce Bromley Corp., (5th Cir.1980). I interpret that case to Mustang
hold that is estopped from denying agent Roberts was its because Mus-
tang did not advise the group Croce that a pilot and Roberts aircraft were go-
ing to make the flight. As the federal put
district “Mustang court it: was under a
duty speak. Mustang did not.” For this only
reason did the Fifth Circuit determine Mustang was liable for the deaths through operation
caused of the Roberts Thus,
aircraft. Mustang’s liability was
based solely holding on a “that
estopped from denying that Roberts Air-
ways was its agent and is liable for the acts
of that agent.” Croce v. Bromley Corp., Liability F.2d at 1088. based on an
agency estopped one is to deny for failure
to speak does not establish
was “using” the Roberts aircraft.
Ranger contracted to Mustang. insure
The majority requires Ranger to insure disagree
Roberts. I with the majority’s too
liberal interpretation of the substitution
provisions which adds Roberts as a named
insured under the policy. The judgment of
the trial court should be judg- reversed and
ment rendered that the aircraft which actu-
ally made the was not insured under
the liability policy. *7 GRISMORE, Appellant,
Kennis Earl Texas, Appellee. STATE
No. 08-81-00079-CR.
Court Appeals
El Paso.
Aug. 1982.
Rehearing Sept. Denied