*1 employed. 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 299 S.W.2d 401

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. material 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 and 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 agent 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 covered his before household both Carter, (Tex.Comm’n ford v. 257 S.W. 531 and after the tornado. jdgmt App.1924, adopted); Continental Cummings, v. Tex. 81 S. Republic acknowledged coverage on the v. (1904); Wagner Westchester W. 705 paid $7,000 house and Silverton its S.W. 569 Fire Ins. Tex. damage, any but it denied to Sil- liability ; Liverpool and Globe and London (1899) goods. verton or Tidwell on the household Ende, 65 Company Insurance Tex. 118 Thereupon, brought Silverton Tidwell- ; Company Colony (1885) Old Insurance Republic against this suit cover- claiming Messer, (Tex.Civ. S. D. age to the limit of the on ($3,000) ref., e.); App.1959, writ n. r. Germania goods owned Tidwell. Trotti, 318 Mutual Aid Association S. Republic writ). grounds defended Sil- no W.2d 918 ownership verton had no therefore cases, the named

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). 89 S.W. 1057 Their military of in service in time ries while location and identity definitely were and war, in as Ruddock Detroit Life correctly Page 1 typed stated. bears a des- 638, (1920); 242 209 Mich. 177 N.W. ignation of property specified beyond of payment or benefits “DWELLING & HOUSEHOLD 65, as age date at termination Great portions GOODS.”1 Other relevant read Mitchell, 335 American Reserve Ins. as follows: ref.). 707 writ “REPUBLIC COMPA- INSURANCE recognize and that waiver The latter cases In NY ... Consideration of operate estoppel may avoid forfeiture of stipulations and add- conditions herein or policy, coverage and benefits stated ed hereto which are amade of this specifically risks but to add excluded policy, provided premiums and of risks therein enlarge or to the benefits or ELE- DOES SILVERTON INSURE case, present plaintiffs set forth. VATORS, legal representa- INC. and only the risk assumed recover on seek against tives . . direct loss result- . written by Republic under the terms ing (listed below) from Perils against Republic’s policy insured A WHICH HAVE PREMIUM IN- precisely the same the destruction SERTED OPPOSITE THERETO and in its goods identified household de- (Column 6) only property and on premiums. There for which it collected its provided scribed and located as hereon.” enlarged risk was is no evidence goods were owned the household because Next, Col- “Coverage” is listed in under than by Tidwell rather Silverton. INSURANCE, the sum of 4, umn TOTAL separate $10,000.00, 6 Column undisputed that Tidwell Although it Ex- Lightning and premiums for Fire the household owned rather than Silverton There- totaling Coverage, $227.00. tended policy was in the when goods OF PROP- after, DESCRIPTION under de- was issued when 1, the ONE is “Item $7000.00-0n ERTY the household they were stroyed and that roof, AS- type of story, COMPOSITION insured, con- Republic to be goods intended SIDING, building, LOCATION BESTOS and thus description, tends 79257, Lot SILVERTON, Texas . . . the written limited coverage, was 9, 143—OCCUPIED 7, Block 8 & Silverton. owned to household DWELLING,” $30000.00- “Item policy covered say The effect . Unless . . GOODS HOUSEHOLD goods; only non-existent distinguish italicized are typewritten the face on words other 1. These and printed words. them 752 provided,

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 household 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 include” 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 require 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); 231 F.2d 18 Cir. S.W. to loss on Clearly, the clause refers entire phrase It is last true that the L.J. items,” at value the time “building their *6 printed definition, “of standard depreciation, repair, replacement loss less family,” appropriate to sured or his not is reconstruction, lan- etc. None of and Elevators, Inc., Silverton since it never personal property. Fur- guage refers to any goods within begins with the thermore, last sentence 1; page described on it has no words, “Subject 6.13 the Tex- to Article home; it residence the sense of a and Article con- Code,” and this as Insurance family. discrepancy ex has The same “The provision that: specific tains the ists extent each time this standard to some to apply article shall not provisions of this corporation. is issued to a Since personal property.” phrase meaningless inapplicable sur- Silverton, a part of plusage in the it has been issued to The clause above pre Policy disregarded applied should form instead of Fire Texas Standard since a so rest of Insurance Commission manner inconsistent with the scribed repair 3. it cost to the amount would clause reads: ceed pay- building replace material with “Loss on items shall be quality within a rea- able ASSURED ONLY like kind loss, Trustee, Mortgagee without time after “Address as sonable any appear of re- increased cost time for their interest at allowance pair loss, subject Mortgage reason or reconstruction Clause regulating (without printed contribution) law construction ordinance or elsewhere compensation repair, Subject for without in this 6.13 to Article interruption Code, 1951, resulting from of busi- loss of the Texas Insurance lia- manufacture; bility nor shall it exceed ness or hereunder shall exceed insured, spe- or the of the interest actual cash value of the at the loss, proper under ‘Amount cific amounts shown time de- ascertained with ” depreciation; Insurance.’ for it ex- duction nor shall 754 tain,

1943. then have Since we found no case (Tex.Civ.App.1933, 62 S.W.2d 168 a involving claim of an owner dism.); Smith, actual for writ Mecca Fire v. Ins. Co. whose benefit a was taken out with S.W. no writ knowledge by full company Maryland the insurance hist). Casualty See Co. et al v. ownership, al., of the true in which this Fashions, clause Palestine Inc. et applied deny recovery by has been or on 883 (Tex.1966), and cases heretofore cited in paragraph opinion. behalf of true owner. Dean Pi See 6 this Co-Operative oneer Fire Ins. 231 F.2d (5th 1956); Cir. Farmers Ins. Ex Republic insists that reformation of change Nelson, (Tex. 479 S.W.2d 717 proper is the remedy, if Civ.App.1972, ref. writ n. r. e.); Old any, recovery by for behalf Silverton on Colony Messer, Insurance Co. v. 328 S.W. Tidwell, because of failure of the written 2d (Tex.Civ.App.-1959, writ ref. n. r. identify the household e.). In the spe later case the clause was disagree. belonging to As Tidwell. We cifically raised as a defense and overruled indicated, undisputed heretofore under the grounds company (1) was facts, described in the estopped by knowledge that the named policy belonged were in insured was not the true owner (2) poli sured Silverton for benefit a that one whose benefit a is is cy by Republic’s agent pur drawn for such sued under such circumstances entitled pose, agent with assurances from the to recover thereon. The latter reason was it would cover If Tidwell’s furniture. this based on a well-established rule contract mistake, Republic’s was a it was made applicable law which is to insurance con agent, mutual, and it was because Tidwell tracts. See discussion of the rule in Cumis agent’s Silverton took the word that Bank, Inc. Republic Soc. Nat. expressed agreement. the true With this page at (Tex.Civ.App. fully being developed evidence Annotation, e.); writ n. ref. r. 61 A. present record, is no to re there reason ;

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 25 A.L.R.3d 589 § company actual 3; and 32 A.L.R.3d 677 3. § § ly the one for whose benefit the policy was written or -maintained. Nation every proof made Silverton Tidwell al Fire Ins. Co. of Hartford et v. Carter recovery in this case that would entitle on al., App.1924, 257 S.W. 531 (Tex.Comm’n above cit- Under the written. ; jdgmt. adopted) et al Scott v. Law Un authorities, ed Court of the trial court and (Tex. ion & Rock Ins. S.W.2d 147 Appeals properly that Sil- Civil have held App.1929, adopted); jdgmt Comm’n Old benefit recover for the verton entitled to Messer, Colony supra; Insurance Co. v. on the without written seeking New York Underwriters v. Brit a reformation thereof. Ins. Co. WALKER, (dissenting), judgments of the lower

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 and 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 con- 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., 85 S.W.2d 937 1184; made Although jury company in bar. the Am.Jur.2d, ref.); 43 Insurance § estoppel support findings tending to an Annotation, 1 1139. A.L.R.2d Appeals af- theory, of the Court Civil Supreme pointed by As out of the Court in favor judgment firmed trial court’s the Michigan in Detroit Life Ins. Ruddock v. the hold- of the true owner on basis of its 242, 638, ap “to 209 Mich. 177 N.W. provisions had ing question in that the estoppel and ply doctrine waiver by issuance been waived of the of insurance here would make this contract acceptance premiums knowl- with terms, by a loss never covered cover edge ownership of Be property. by a the con liability to create not created question there was may, that as it by the tract and never assumed defendant case, does coverage in the decision policy.” the terms Neither under proposition the limi- not for the that stand made serve properly doctrine can be liability may be out of the tation of waived American purpose. In Reserve Great determining purpose of cov- for the Mitchell, Tex.Civ.App., Ins. Co. 335 S. erage. (wr. ref.), the court reviewed W.2d is no sole and unconditional own- There correctly stated the

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