*1 erais,” moreover, nothing in the there is remotely
deed suggesting even an intention grantee destroy right vest opinion
the surface. these ore, gravel
circumstances the like and lime-
stone, should belonging be considered as
the surface estate and not as accordingly
minerals. hold that as a
matter passed of law no interest in the ore
by the deed. Ap-
peals is affirmed.
UNITED STATES FIDELITY AND GUAR- COMPANY, Petitioner,
ANTY
BIMCO IRON AND METAL COR- PORATION, Respondent.
No. B-2310.
Supreme Court of Texas.
Feb. 1971.
Rehearing Denied March
trial
judgment
court rendered
jury
based on the
verdict. The Court
Appeals
repair
held that the cost of
building
replace wiring,
boxes
and
transformers was covered under
policy but
and
reversed
remanded
cause on the
issue waiver of late
af-
loss.
There is no with reference to facts giving rise coverage During of this weekend loss. 10-13, burglars broke into July warehouse, the elec- dismantled system trical of the warehouse voltage wiring and trans- high moved the defendant, response to formers. admissions, request for has "that admitted constituting carrying away by wiring wiring building, damage the 440 volt by burglars was done stipulated that the It has been vandals.” apparatus were wiring electrical time of the occur- at the record also reflects question. rence in burglars cut a lock and that the is No claim gaining entrance. door in tools, some being loss of made for the were metals that gauges and miscellaneous from the warehouse. also stolen to and inves- promptly reported event was by police. tigated paid the first $490.- installment Bimco for a premium 00 on the total $1225.00 Coverage” Extended “Fire, Lightning riot, hail, explosion, hurricane, (windstorm, Freeman, Crooker, Fulbright, Bates & commotion, policy of etc.) civil Houston, Connally, pe- Jaworski, Tom commencing three-year term having a Jan- titioner. policy was uary 3, Attached en- mischief Burg, Finger, Z. and malicious Finger & Leonard the vandalism portions Houston, relevant respondent. dorsement. endorse- mischief ours): provide (emphasis ment McGEE, Justice. (Incl.) $10.00 consideration “damge to the “1. to recover This is suit * * provisions subject to premium and by burglars” caused building(s) endorsement, lia- this policy and mis- vandalism and malicious under the hereunder bility of this a Texas attached to chief endorsement peril resulting from loss or Policy of fire Standard insurance. hereby of Riot and Paragraph Civil Commotion clause. extends extended to include loss dam- “damage caused to the building(s) covered here age to or de- destruction of the under burglars.” If paragraph scribed Mis- away Vandalism Malicious 3b takes this coverage by denying chief, including damage to build- “by burglary,” we then ambig have an ing(s) contract, covered hereunder caused bur- uous as found the Court of *3 glars. Appeals, which will be liberally con strued in favor the strictly insured and The term and Mali- “2. ‘Vandalism against the insurer. Casualty Continental cious Mischief’ used herein is re- Warren, 164, Co. v. 152 254 Tex. S.W.2d only stricted or to and includes willful (1953); 762 Providence Washington In physical injury or destruc- Proffitt, 207, surance Co. v. 150 Tex. 239 property. tion of the described (1951); United Auto Service Miles, mobile 138, Ass’n v.
“3. When this endorsement is at- Tex. S.W.2d 1048 policy covering (1942); tached to a direct loss to Insur Tex.Jur.2d ance 59 at 119 property, Company the described § shall not be liable under this endorse- interpret paragraph We 3b to exclude any loss: ment for personal property coverage, e., from the i. tools, lot of gauges, and
n n n n met- sjc miscellaneous theft, or pilferage, als “(b) that were stolen from the warehouse. gives This effect paragraph 3b. Court recognizes ambiguity no at all. We n n n ‡ ‡*." said following Casualty in Continental Warren, supra: Co. v. respondent Plaintiff claims cover age phrase paragraph under the last “But for poli- the fact that insurance petitioner Defendant that this loss contends governed by cies are special rule of paragraph 3b. falls exclusion of within the construction, part which is a familiar The construction of this vandalism jurisprudence, indeed, might, we presents malicious mischief endorsement hold either that interpretation impression in Texas. first liability of the insurer should alone, Standing unquestionably the loss is that, prevail policy or being ambigu- en- insuring covered clause of the ous, there is a fact issue as to what was (paragraph 1). oc- dorsement The loss course, rule, ap- Yet the intended. burglars curred when dismantled plies, and may under it the insurer system of destroyed the electrical escape liability merely his or its because realty. building which was a interpretation appear should to us that policy no other form of know of We likely more of the intent of reflection buildings by bur- covers parties interpretation urged than glars. no The latter has to be insured. more than one is not itself unrea- which if the that even The defendant contends Lloyds Casualty sonable. Insurer then a sec- by burglars, damage is caused McCrary, 229 S.W.2d 149 Tex. loss is question, ond whether the 605, 609.” larceny, must burglary or negative before be answered & Prac- Appleman, In Insurance Law (paragraph 3b). is covered tice, we find (1970), 3182.25 § “ * * * under such statement: give this endorsement refuse to and mali- require policy insuring against vandalism It would strained construction. excluding generally but to the exclu- cious mischief effect give this Court to full insuring losses, may had for such recovery theft ignore the sionary clause and to though vandalism the proper- even some of covered because excep- ty by Apple- was stolen.” The case cited tion clause to the effect man for latter statement is Auto- State does not cover loss theft or mobile Mutual v. The (at page 599): court said “The evi- Trautwein, (Ky.1967). dence before the court was sufficient to es- case, conditioning permanent- air units tablish conflicting without inferences that ly apart- openings mounted in wall in some suffered a ments had been removed after the vandals sured through or mali- jimmied mischief, thieves had doors to cious which loss is not excluded apartments gain entrance. from though may even agreed replacement value of an occurred the course of actual at- tempted air other conditioners was and that burglary.” theft or $648.00 apartments damage to the amounted *4 by We hold that reason of the endorse- judg- The trial court rendered $194.50. policy ment of the covers all the loss sus- for the total plaintiff ment for amount. by tained the insured as the result of will- appeal. on This was affirmed * * * “damage building(s) ful to the by the court was The sole decided burglars,” including all costs of by caused any or or loss whether not all of claimant’s necessary repair the material and labor and mali- was covered building. his insur- endorsement of cious mischief the endorse- policy. language ance The of Defendant also relies on the fact that in quite to that ment is similar involved proof of plaintiff timely failed to file a not Paragraph 1 does contain case. proof Absent com- loss. the insurance * * * “damage building(s) the necessity a pany’s filing waiver of the for by burglars” phrase, but recites caused loss, plaintiff not re- proof of the could “ ** * to include coverage is extended The to admit cover. trial court refused by loss to the described on testimony relating certain the waiver Add- Mischief.” Malicious Vandalism ground occurring that it related to facts * * exception (“ the clause ed to after agreement a had been ex- non-waiver this liable under * Company shall not be ecuted. The held Appeals ** by any (b) endorsement for loss that testimony the evidence admitted into or did a not raise fact the issue as whether ” * * * “except loss ) the are words plaintiff’s defendant the failure to waived injury to physical willful file a proof, but for a new trial remanded of a described destruction on the ground testimony developed on that that observed sured hereunder.” court exception a bill of the raised issue. been insert- provision the latter must have agreement part provided non-waiver in that purpose ed concluded for some Company “that any action taken the injury recognize the that purpose towas * * * accident investigating said covered, although occur- the was waiver, operate way shall not any See ring in connection with any invalidate the conditions of said Annot., A.L.R.3d ” * * * policy. holding per in a curi- find a similar opinion am in Allstate plaintiff’s exceptions would bill of Coin-O-Mat, Inc., (Fla. So.2d 598 filing shown: that after the time plaintiff recovered for a App.1967). The proofs expired and the non-waiver had persons broke into executed, or more when agreement Mr. Wilson washing twelve laundry and adjust- Adjustment (claim Bureau General required laundry the own attorney machines which told defendant) er for expend repairs. substantial sums pay er to would not company that the loss was claimed not pay Defendant from theft but would breaking damage Adjustment claim to to the door the General Bureau request Wilson, for handling by Mr. burglars. adjuster. in of the answer to liability grounds that He never the defendant admitted denied on the admission filing proofs late damage it told loss. Mr. Wilson had door but that conferences with the insured and was covered through removal of the wir- him obtained estimates of cost resulting from the not; system repair building damage. ing defendant’s counsel statement made agreement non-waiver this case Honor, “Your I think that trial: merely investigation states that of the acci- posi- certainly happened, I take the what operate dent will ac- as a waiver. The right exactly tion now that that is what attempting tion Wilson settle building is says, door claim payment to the door is covered and the wire is not covered.” not, investiga- in our opinion, a any liability denial on The total tion. conduct was inconsistent with grounds, proof filing non-filing after the time for known insurer’s defense expired not constitute proofs had would trial of loss. The court commit- late ted in excluding waiver of the defense of reversible error this testi- County Hart- mony. of loss. Galveston Co., 231 ford Fire Insurance *5 ref’d).
(Tex.Civ.App.1950,writ The instant of case is one waiver estoppel. and does not involve The time Mr. to ad Wilson was authorized filing proofs expired of loss had before just particular to notice loss and waive the action constituting of the insurer an al proofs Employers Mu formal of loss. leged Al of this waiver defense occurred. Moines, tual Co. of Des Nel Cas. Iowa v. though is a in Texas there conflict found son, (Tex.Civ.App.1961, decisions, adopt that a waiver we the rule grounds, rev’d on 704). other 361 S.W.2d may expiration be of effective after generally adjust “It is recognized an performance has time for of a condition er, premises, may to authorized act expired, if which is asserted the condition waive formal of 32 loss.” Tex.Jur. to is not a material have been waived 2d Insurance 385 at 598 § obligor’s agreed equivalent non-performance does not promise its been defined as an Waiver has received materially the value affect relinquishment intentional of known a of Life Assurance obligor. Equitable right or intentional conduct inconsistent Ellis, 147 Tex. 105 States v. United with claiming Bond. & it. Massachusetts rehearing 152 S.W. on (1912), 1152 S.W. Co., Exterminating Insurance Co. v. Orkin Ma Antonio v. San (1913); Graham 625 ad (Tex.Sup.1967). 416 An S.W.2d 396 303 Corp., S.W.2d 418 Supply & chine to partial liability damage mission of Re r. e.) n. ref’d writ (Tex.Civ.App.1967, proofs the door filing after time for 297 88(1), Contracts §§ statement in loss an expired had is inconsistent with Contracts, 759 Corbin, § 3A (1932); timely file rely tention to on to failure (2d 49.784 Insurance § 14 Couch (1960); not a proofs is of loss as a defense. ed.1965). defendant, case where the as Galveston that waiver held specifically Ellis we In Co., su County Hartford Insurance v. Fire liability may be precedent a condition al pra, time denied after the any liability occurring conduct established after filing lotted loss. After proofs has condition performance time expired proofs time for loss had waiver between distinction expired. re agent local the defendant wrote to again noted is this situation estoppel in questing processed. be claim Insurance & Bond. Massachusetts agent then referred recording 358 Exterminating opinion,
Co. v. Orkin very Co. coverage limited same charac- supra, 401) : “ * [*] effect that waiver (416 is essentially page ter of ten dollars. commensurate with the minor premium character; as unilateral it results a my majority view the has miscon legal consequence act or conduct from some ceived the con nature of insurance party operates; against whom it no against tract. It insured Bimco direct party act whose favor it is made to the specifically described warehouse necessary complete it. It not be need building perils resulting from the listed upon agreement sup- new founded a Lightning, Coverage Fire and Extended ported by consideration, it nor is essential Hail, (Windstorm, Hurricane, Explosion, upon estoppel.” be based an Riot, Commotion, Smoke, Aircraft Vehicles), Explosion, and Land Vandalism on Waiver need not be founded Mischief, Malicious Rents. ajid agreement, supported new con nor be purport The insurance contract did not estoppel. sideration nor To the based on resulting insure from extent that the and others cases wrongful prop appropriation and theft of contrary have held to in con and are erty, type another distinct opinion, they flict with this are overruled: carrying corresponding premium charge. La Merchants’ Mutual v. Co. building with insured loss to croix, Ware, (1876); Tex. 158 Denton v. extending the endorsement no (Tex.Civ.App.1950, S.W.2d 867 type similar of loss. This was described writ); Mounts, Ferguson v. S.W. damage destruction (Tex.Civ.App.1926, j.); o. writ dism’d w. mischief, acts of and malicious Deahl, Miller (Tex.Civ. S.W. the latter burglars. That acts Bin App.1922 Hutchings writ ref’d); e., peril, covered i. ford, no (Tex.Civ.App.1918 206 S.W. burglars, was limited acts writ). *6 directly scope in to to Ap- The says explicit. is made endorsement peals affirmed. that when it is attached to a cover as ing property, direct loss to the described here, it not lia STEAKLEY, was shall be (concurring). Justice ble disposition of cause I concur necessarily means appar- disagree but with the construction peril. The theft was an excluded words ently given I insurance contract. read endorsement, as well the small as majority opinion hold Bimco premium charge, plainly reflect the intent was insured theft parties preserve nature of copper wiring shown not transformers insuring against contract as one burglary. been I itself, just to the ambiguity provisions see no may not con plainly as the endorsement and Malicious with its Vandalism expressed inten beyond clearly strued Properly con- Mischief Endorsement. enlarge to in so tion as strued, Bimco to re- entitled contract Royal from theft. Indemni clude loss See cover the cost of and materials labor Marshall, ty Company v. quired damage build- to restore the As British America (Tex.Sup.1965) itself; to re- ing entitle Bimco did not 60, Miller, 414, 44 S.W. sur. Co. 91 Tex. v. which, cover for theft lost L.R.A. course, purpose was the impression of first case is one given Only in this is full effect manner determined, Texas, as and as far can be and the endorse- insuring both the clause jurisdictions in other Decisions add elsewhere. more than did no latter ment. phraseol- different policies with construing point, not are characteristics
ogy and indeed, particularly persuasive
and, cite State majority
way or the other. Trautwein, Ins. Co. v. Mutual Automobile concluding (Ky.1967) recognize purpose
“that the covered, although building was
jury burglary.” with a
occurring in connection hand; nei- the issue meet
This does not Coin-O-Mat, Ins. Co. does Allstate
ther
Inc., (Fla.App.1967). So.2d
CALVERT, and WALKER J.,C. concurring
REAVLEY, in this JJ., join
opinion. Petitioners, al., BOYLES et
Howard AND POWER
HOUSTON LIGHTING COMPANY, Respondent.
No. B-2266.
Supreme Court Texas.
March 1971.
Rehearing Denied March *7 White, Cook,
Reynolds, Allen and Wil- Cook, Houston, liam Grant H. White and petitioners. Botts, Coates, Baker, Shepherd Finis & Houston, Held, E. Cowan and John spondent.