*1
еmployed.
condition,
which the
ous
properly
subcontractor
is
the trial court
di-
RR.,
Hailey Missouri K.
T.
Ferguson.
See
&
rected a verdict for
writ
The judgment of the
ap-
court of civil
ref.); Humphreys v. Texas Power &
peals
reversed,
judgment
is
and the
Light
(Tex.Civ.
trial court is affirmed.
App.1968,
e.);
writ ref. n. r.
Moore v.
Company,
(Tex.
Texas
Civ.App.1956, writ n. r. It e.) ref.
be that under some circumstances there danger special
would be a concealed which,
problem though created a sub employee, general
contractor’s con to
tractor should take extra measures call to the attention other employees COMPANY, REPUBLIC INSURANCE Petitioner, subcontractor," [Emphasis add ed]. INC., ELEVATORS, al., SILVERTON et appeals The court of civil concluded that Respondents.
the facts of the fell within the instant case No. B-3333. danger special problem” “concealed cir- quoted cumstances set forth in the above Supreme Court of Texas. court, dictum of this and remanded this April 11, 1973. case for fact finding a as to whether or Rehearing May 30, Denied inspection by Ferguson reasonable a danger. would have revealed the concealed conclusion, disagree
We with that and we present
hold that the instant case does not
one of those in which there circumstances duty general to take contractor employee
“extra measures” warn an to danger arising
a subcontractor of a performance the subcontractor’s
work. dangerous condition the instant peculiar
case was specialty technical employed.
for which Fisk was Fisk had a
duty perform safely, its work Fisk superior position prevent
was in a for, of, inspect
existence to elimi- danger-
nate or warn this employees its
ous condition. is not This circumstance general
one those in which a contractor required to take the extra re- measures Instead,
ferred to in Pence this case. general
is a circumstance in which the con- anticipate required
tractor is not discharge
failure of its subcontractor employees.
duty to its own duty
Because there was Ferguson danger- to warn Lamb of this *2 Pharr, Evans, Jones, Trout & A. John
Flygare, Lubbock, petitioner. Spivey, Pa- Gibbins Bob Gibbins and & Hazel, Austin, respondents. trick DANIEL, Justice. by Respondents, brought
This suit was Elevators, Tid- and Carl L. Inc. Silverton well, Petitioner, Republic Insurance against Texas Stand- Company, recover under a Eleva- Policy issued to ard Fire Silverton covering Republic a residential tors goods contained dwelling and household trial, was non-jury In a therein. Silverton benefit” $3,000 use and “for the awarded for the loss of Carl L. Ap- goods. The Court Civil household af-We peals affirmed. firm. mаterial at all times L. Tidwell was
Carl officer, controversy, director an to this Eleva- manager of Silverton the general tors, and furnished Inc. Silverton elevators, to- near to Tidwell a house house and insurance on the gether with the goods, household Tidwell’s manager. general compensation is- had 1964, Republic’s agent local Since in the policies insurance sued and renewed covering name Silverton goods. and its undisputed It Inc., Silverton in- named agent, authority the local who had sured. policies premi- issue the receive pleadings Silverton аnd Tidwell’s assert- ums, knew that be- they interests; ed that both had insurable longed to Tidwell and that was Silverton purchased by the insurance was Sil- carrying the insurance for the benefit of *3 and verton extended to Tidwell as April 17, 1970, Tidwell. On a tornado de- compensation his as and le- manager as “a stroyed goods. the house and the household gal representative of Silverton Inc.”; and Republic that when its issued On the date the tornado there was in policy and accepted premiums with full effect Policy a Texas Standard Fire with knowledge ownership of the true and rela- Coverage Extended on DWELLING & tions Tidwell, between Silverton and HOUSEHOLD in the sum of GOODS right waived the complain any to about $10,000 by Republic issued for Silverton lack ownership or interest of insurable period April 20, 20, the April 1969 to estopped the named insured and was from 1972, against insuring loss from windstorm denying coverage on behalf Tidwell. specifically “occupied described dwell- indicated, As heretofore the trial court ing” $7,000 for goods and “household $3,000 awarded Silverton Elevators “for building” while the described and the use benefit of Carl L. Tidwell.” $3,000.00. undisputed It is that Silver- paid ton premium, and local $227.00 аgent that at the admitted time he issued Since the refers to and policy the policy he knew the facts heretofore purports clearly cover household respect mentioned ownership with to actual goods specifically located described of the property. He testified that agree dwelling, we with Court of Civil he policy wrote the Tidwell’s cover Appeals that knowledge of Tidwell’s goods household located in dwelling ownership goods by Re household which and family occupied; his public’s agent local re actions with his that he knew Silverton was carrying spect imputed binding thereto were policy goods on the household for the ben- upon Republic. policy Issuance of Tidwell; efit of that when issued the he premiums with such collection policy he did not think any it made differ- knowledge operates any re as a waiver of ence that it was in the name of Silverton that quirement the named insured own “they paying
because
were
premium”;
possess
a beneficial
the insured
interest
policy
that he told Tidwell
of Hart
property. National Fire Ins. Co.
goods
coverеd his
before
household
both
Carter,
(Tex.Comm’n
ford v.
insurable interest
the household
the above
In
sole
as written was limited
not the
owners
were
owners
sureds
case,
each
properties.
terms
of the insured
owner was
the insurance
true
known to
even though Republic
$3,000.00
wrote a
agent
recovery,
direct
and was allowed
on household goods located in the
benefit,
grounds
recovery for
described dwelling, there was never in fact
company
the insurance
had waived
coverage on anybody’s household
in-
ownership
sole
goods.
warranties of
or lack
This
is inconsistent not
with
be-
surable interest. There is no conflict
the undisputed
agent
intention of its own
which
tween the above cases and those
but
provisions
with the
estoppel
oper-
hold that waiver and
cannot
written. The household goods were re-
within
of a
bring
ate
the terms
ferred to on the face of
being
expressly
or benefits
liabilities
which were
located in
specifically de-
therefrom,
excepted
liability
such as
scribed in the
There was no misde-
injuries due to
in Wash-
gunshot wounds
scription of the
property by
location of the
*4
Craddock,
ington
Tex.
Nat. Ins. Co.
130
agent
Brannon,
as in Aetna Ins. Co. v.
251,
inju-
165 (1937);
391,
loss
99 Tex.
(1905).
otherwise personal Insurance on departing provisions from the ap these shall cover while in proved the de- terms. Commercial Union Assur. building.” scribed Under the above DE- Preston, Co. v. Tex. S.W. 563 SCRIPTION OF heading, PROPERTY Descriptive (1926). coverage, words of type small are the words: “See cluding definitions description location and Goods, of Building, Stock, Fur- Household property, terms of coverage, and amount niture, Fixtures, premium and, Machinery, coverage, each are to be typed in on the face of (page 1) Contents.” Republic’s was done. agent on the Definitions, Special before us. Con of the typed printed None words ditions, Specific Conditions, Coverage on the face of the limit or restrict printed Basic Conditions are pages on coverage description of househоld and 3 princi standard goods to those Silverton Eleva pal function the standard “definitions” tors, Inc., unless, by Republic, as contended explain is to what the used page terms the reference to and terms of the small- ordinary include in addition to their type printed definition page have that meaning. phrase The first in the defini reads effect. It : “Household Goods In : every tion page term to on referred surance on shall include page pol defined on of this standard personal residence, all property, usual to a *5 icy 2 contains the words “shall inсlude” and of the insured and his family.” enlarges in some manner rather than limits ordinary meaning the By of the term. early an involving dispute case definitions, means of these standard the definition, about meaning the of this the required companies Board has insurance court said ample “there room for such clearly explain page that the used terms views,” divergent but concluded that the general 1 include within the classification “by explanation” words were used way of coverage property of types certain in a which ordinary manner broadened the uncertainty might about which a contest or meaning the goods.” of term “household found otherwise arise. We have no McAdams, Dixie Ins. Fire Co. v. 235 S.W. stance in which a Texas has held court 1950, 2d 207 (Tex.Civ.App., dism.). writ that a definition the Texas Standard Being preceded by the words “shall in Policy Fire limits or restricts either the clude,” there is no limitation or re hint of description the coverage or the of pur striction in the does definition. It not policy. as contained on the face the of port change descriptive location of Perhaps is due settled rule this to the well it requirе be owned “include,” “including,” words by the named Neither insured. does employed generally “shall are include” as purport description limit or restrict enlargement terms rather than limita of of coverage the extent as set forth tion or Peerless Carbon Black restriction. page 1 of Alexander v. See 996, Sheppard, Co. v. 113 S.W.2d 997 Co., 752, Firemen’s Ins. 317 755 ref.); (Tex.Civ.App.1970, writ Houston 1958, (Tex.Civ.App., writ). no Lansdowne, Bank 201 & Trust Co. v. S. 834, Republic’s argument contrary ig (Tex.Civ.App.1947, to the W.2d writ ref. 838 purpose Safeway nores n. by e.); served definitions in r. El Paso Electric Co. Stores, Policy, 502, a Texas of (Tex.Civ.App. Fire terms 257 S.W.2d 506 Standard promulgated which were the State writ n. Alexander v. e.); ref. r. Co., Board of Insurance under Articles Firemen’s 5.35 Ins. Code, (Tex.Civ.App.1958,
and 5.36 Texas Insurance hold V.A.T.S. We writ). companies prohibited from that the “shall as used Insurance are words include” Emphasis throughout opinion.
2.
here and
added
remainder of this
coverage of
to defeat all
enlargement
as
definition are terms
this
Republic col
limitation,
which
and the definition
than
rather
restricting the
effect of
not have the
premiums.
does
London & Provincial
lected
property as
description of
coverage or
Sykes,
S.
Ins.
Marine & General
face of the
set forth on the
writ
dism.);
W.2d
Bond
Trinity
Lion
Portland Cement Co. v.
inter
the definition
Republic would have
Co.,
(Tex.
Surety
ing &
S.W.
follow
preted
it contained the
though
as
App.1921,
adopted).
jdgmt
Comm’n
“Insurance
italicized words:
ing additional
and mean
shall include
on household
by Repub-
suggested, but
It has been
property, usual to a resi
personal
all
lic,
provision
building
item
con-
dence,
named
[Sil-
clause
“Mortgage or Trustee”
tained in the
family.”
verton
Inc.]
policy,
face
at the
bottom
be
construction would
The effect of such
thereof, limits
particularly
last sentence
requirement
uncon
to add
sole
compensation to the “interest
liability for
ownership by
insured to
the named
ditional
applies to
insured,”
this
and that
would
description
coverage,
which
pro-
though the
personal property.3 Even
contrary
to the
as written
insured,”
speak
“named
vision does not
promulgated
the Board of Insurance.
practical
was
purposes Tidwell
and for all
warranty
ownership
required
This
the “insured” because the
was once carried
named insured
for his bene-
goods was written
Policy,
it has
Texas
Fire
but
Standard
fit,
rea-
compelling
are
more
there
other
long
by the Board.
since been discarded
inapplicable
why
provision is
sons
this
Co-Operative
Dean
Pioneer
Fire
case.
personal property
in this
involved
(5th
1956);
1943.
then
have
Since
we
found no case
(Tex.Civ.App.1933,
L.R. 720 4 Corbin on Contracts § quire trial another for reformation
written
It has been held
even
applicable
Whether
personal
plea
reformation,
without
when
not,
property or
portion
agreement
we hold
facts
show the
intended
true
mistake,
relating
clause
and a
to limitation of lia
mutual
or mistake of the
*7
bility
agent,
to “the
policy,
interest of the
preparing
insured” falls
the written
agreement
within
ownership provi
intended
be
with
category
will
enforced
may
waived;
through
proceedings
sions which
out going
the formal
be
the insurer
may
estopped
liability
reformation. Aetna Ins.
v. Bran
denying
from
Co.
non,
1057;
policies
true owner
Tex.
Aetna
on
issued in
99
89 S.W.
Brannon,
Tex.Civ.App.
parties
names
53
of third
covering
risks
writ).
116
S.W.
on
property
knowledge
identified
with full
3;
A.L.R.3d
See also
Accordingly, the Justice affirmed. courts are far as rele- respectfully dissent. In I so WALKER, Opinion
Dissenting J., here, policy provides face of vant joined GREENHILL, J.,C. and POPE REAVLEY, as follows: JJ.
REPUBLIC COMPANY INSURANCE Capital Company A Stock Home INSURED: Silverton Office Elevators, Inc.
Silverton, Boulevard Tex. Turtle Creek Dallas, Texas 792S7 here- stipulations herein or added Consideration of and conditions which are . does made a of this . . insure Silverton re- legal representatives against direct loss Inc. and . . . premium in- (listed sulting below) Perils which have opposite (Column 6) serted thereto on the described provided located as hereon. OF DESCRIPTION PROPERTY Amount Goods, Building, See definitions of Household Stock, Furniture, Fixtures, Machinery, Item and, or No. Insurance and Contents
7,000.00 Building] [Description of HOUSEHOLD GOODS 3,000.00
Unless otherwise [*] [*] [*] provided, insurance per- in the only while cover property shall sonal building. described ONLY payable to ASSURED building items shall be
Loss
Address
appear
Trustee, as their interest
Mortgagee
*8
printed
loss, subject Mortgage
(without contribution)
to
at time of
Clause
in
elsewhere
this
Code,
liability here-
Texas
Subject to Article 6.13 of the
Insurance
time
the
property at
shall
cash
of the
under
not exceed the actual
value
it
shall
loss,
depreciation; nor
proper
of
with
deduction for
ascertained
property with
repair
replace
to
or
the
exceed the
it
cost
amount would
loss,
the
time after
quality
of
within a reasonable
material
like kind
by
repair
reconstruction
increased
of
any
without allowance for
cost
or
repair,
regulating
or
any
of
ordinance
law
construction
reason
or
or
interruption
compensation for
from
of business
resulting
without
manufacture;
loss
insured,
specific
of the
the
shall
exceed the interest
nor
of
amounts
under “Amount
Insurance.”
shown
definitions,
tents,”
others,
following
among
personal property
employees
The
the
of
insured,
appear
including
on
of
Tid-
page
policy:
the second
of the
and officers
the
well,
protected.
would have been
This was
on
HOUSEHOLD GOODS —Insurance
done,
policy as
not
аnd the
written does
goods
person-
shall
all
include
purport,
reasonably
not
and cannot
be con-
residence,
property,
al
the
usual to a
of
strued,
provide
coverage
proper-
to
full
family.
insured and his
persons
ty
by
owned
other than Silverton
Elevators, Inc.
op-
Household Goods Extension —At the
insured,
of
up
tion
the
to
of the in-
10%
provision
liability
The
in-
limiting
to the
specifically
surance written
on “House-
applies
obviously
terest of
to
the
ap-
a
may
hold Goods” in
residence
be
personal property.
both real and
the
Since
plied as excess
(a)
insurance as follows:
otherwise,
purpose
Court does not hold
no
goods
on household
of
insured else-
the
point.
be
a
will
served
discussion of the
tempo-
on
premises
where
and when
According
majority opinion,
pro-
to the
in
rarily
any
removed to
other location
limiting liability
vision
“falls within the
Canada,
America,
the United
of
States
category
provisions
ownership
of
which
and,
Mexico,
(b)
prem-
while on the
waived;
may
be
the insurer
be es-
goods
ises
of servants
topped
liability
true
denying
to the
goods
on household
in
others
the cus-
policies
in
names of
owner
issued
tody of the insured.
parties covering
third
risks on identi-
knowledge by
with full
property
fied
company
property
actually
is
CONTENTS —Insurance on
“Contents”
shall
benefit
include all
one
whose
property included above
“Stock,”
and,
“Furniture, Fixtures,
in
(Emphasis
was written and maintained.”
Goods,” and,
Machinery,”
supplied)
if
It will be noted
the Court
“Household
insured,
Tid-
personal
covered
otherwise
there assumes
officers,
employees,
partners;
question
property,
well’s
and that
personal
shall,
presented
loss
to such
There is
cоn-
for decision.
no
option
at
Company,
adjust-
suggestion
of this
be
tention and has been
would,
ed
and payable
with
liability
the insured.
‘limitation of
itself
case, deprive
the facts of this
re-
under
on its face purports to insure
recovery
spondents
they
a
to which
Goods,”
“Household
but only while in the
might
pro-
otherwise be entitled under the
building
described
the extent
however,
is,
visions of
It
one
of the interest of Silverton
Inc.
provisions
that should be considered
Upon
definitions,
looking
therein.
to the
determining
coverage
afforded
expressly incorporated
which are
by refer-
as written.
It must be eliminat-
ence in the
the policy,
face of
we find that
way
ed in some
before the
can be
personal property,
“all
covers
goods, regard-
said to^cover all household
residence,
usual
the insured and
owned,
less of
whom
located in the de-
family.” Coverage was thus
extended
dwelling.
attempts
scribed
This the Court
appropriate
an
family
case to the
in-
by holding
of lia-
do
that the limitation
insured,
At
option
up
sured.
provision
bility
been waived.
I do not
has
stipulated
might
ap-
amount
10%
agree.
plied
excess
insurance to the household
holding
of servants and household
The net
majority
effect of the
custody
policy coverage
others
the insured.
and create
extend the
*9
is, however,
policy
in
nothing
entirely
by
There
the
or
an
different
waiver
contract
course,
extending
coverage
the
to household
estoppel.
contrary,
full
That
of
by
If
in
oth-
not owned
the named insured.
the established rule
Texas and most
policy
jurisdictions.
er
Washington
the
had
written to insure
Nat. Ins. Co.
been
“Con-
fire,
provision limiting
a
Craddock,
251,
but it contained
Tex.
liability
of
insured and
the interest
the
165;
Co. v.
American Reserve Ins.
Great
in-
if the
making
another
the
void
Mitchell, Tex.Civ.App., 335
S.W.2d
fact.
sured
material
;
Ins.
had concealed
ref.)
Bonding &
(wr.
Massachusetts
insur-
provisions as well
of
Dye These
as lack
Laundry
Dallas
&
Co. v.
Steam
pled by
insurance
were
the
(wr.
able interest
Works, Tex.Civ.App.,
the authorities and provision ership in involved similar Texas rule follows: present urge lack case. Petitioner does not estoppel oper- may and, . Waiver contrary to the interest insurable policy, ate to avoid a of a but forfeiture suggestion majority opinion, in we are they consistently opera- have been denied “requirement with a concerned change, tive force to en- possess re-write and beneficial named insured own a large by the risks a policy. pro- covered property.” The interest in the words, estoppel other can not liability waiver limiting interest vision a new warranty create and different contract with a requirement, the insured is not respect by to risks covered It is representation. not a condition This has law impor- been the settled in Texas forfeiture, it is of but considerable Washington since decision in Nat. determining tance here Craddock, 251, Co. v. 130 Tex. am able policy. So far as I covered . determine, . . first present S.W.2d 113 A.L.R. is the case held, some- has albeit in which Court our support None of the cases cited compa- an circuitously, that insurance what holding pertinent waiver here. Most of for a ny may liability itself “waive” into them involved so-called sole and uncon by the policy. loss not covered clause, ownership ditional provided which opinion respondents It is are not my that the entire would be if the void written, the policy entitled to recover on interest of the insured was other than sole they attempted have to do and that is all ownership. unconditional Others right thus show his stipulation volved would far. a obtaining offering recover change ownership evidence void in case of a findings that establish mutual mistake provided agreement unless otherwise agreement. Aet the true See terms of endorsed Old Brannon, Messer, 99 Tex. 89 S. na Ins. Colony Insurance Co. v. Tex.Civ. then be trial court App., e.) ref. 1057. The would (wr. n. r. W. judgment based on position damaged to enter covered that was
coverage actually agreed upon and intend
ed parties. It would also posi be in
tion petitioner insure receives the
appropriate premium actually for the risk
assumed. I would judgments reverse the
of the courts below and remand the cause justice. the interest of
GREENHILL, C. J., POPE and
REAVLEY, join JJ., in this dissent. William
Larry Appellant, FRY,
The STATE of Texas, Appellee.
No. 44537. Appeals
Court of Criminal of Texas.
March 1972.
Rehearing May 24, Denied 1972. Rehearing
On State’s Motion for April 18, 1973. Rehearing May 9,
Second Denied