Glens Falls Ins. Co. v. McCown, 15114

Citation228 S.W.2d 949
Decision Date24 March 1950
Docket NumberNo. 15114,15114
PartiesGLENS FALLS INS. CO. v. McCOWN.
CourtCourt of Appeals of Texas. Court of Civil Appeals of Texas

Holloway, Crowley & Hudson and Edgar H. Keltner, Jr., all of Fort Worth, for appellant.

Hyder & Honts and Wm. J. Chilcoat, and John B. Honts, all of Fort Worth, for appellee.

McDONALD, Chief Justice.

In May of 1949 there occurred in certain portions of the City of Fort Worth a flood of perhaps unprecedented dimensions. Following extremely heavy rainfall, the water in the Trinity River, which runs through a considerable part of the city, rose until it left the banks of the river and then in several places flowed over the system of levees which paralleled the river, with the result that large areas of the city, both business and residential, were inundated.

Appellee McCown, a dealer in automobiles, had a number of automobiles on a lot in the flooded area. Some of the automobiles were moved away before the flood waters reached the lot but seven of them were left on the lot and were damaged by the flood waters. Appellee sued appellant, claiming that the damage to the automobiles was covered by a policy of insurance theretofore issued by appellant. Appellee recovered judgment for $2,057.30 in a nonjury trial, and appellant, the insurance carrier, has appealed.

What is designated as Item 3 of the policy begins with the following language:

'The insurance afforded is only with respect to such and so many of the following coverages as are indicated by specificpremium charge or charges. The limit of the company's liability against each such coverage shall be as stated herein, subject to all the terms of this policy having reference thereto.'

Next following the language just quoted there is a list of eight different coverages, the first of which is denominated 'A-Comprehensive,' another 'E-Windstorm, Earthquake, Explosion, Hail or Water,' and another 'F-Combined Additional Coverage.' There is no premium charge opposite coverages A and F, and it is admitted that appellant is liable, if at all, only under coverage E.

In a number of paragraphs under a heading 'Insuring Agreements' the insurer agrees specifically to pay for certain losses under the several headings. Coverage A, for instance, referred to as 'Comprehensive Loss of or Damage to the Automobile, Except by Collision or Upset,' plainly appears to cover loss of the nature sustained in the present case.

The paragraph relating to coverage E reads as follows:

'To pay for direct and accidental loss of or damage to the automobile, hereinafter called loss, caused by windstorm, hail, earthquake, explosion, external discharge or leakage of water except loss resulting from rain, snow or sleet.'

The paragraph relating to coverage F reads as follows:

'To pay for direct and accidental loss of or damage to the automobile, hereinafter called loss, caused by windstorm, hail, earthquake, explosion, riot or civil commotion, or the forced landing or falling of any aircraft or of its parts or equipment, flood or rising waters, external discharge or leakage of water except loss resulting from rain, snow or sleet.'

The first question to be determined is whether or not we are entitled to look to the language of the paragraph last quoted, defining coverage F, in our effort to interpret the meaning of the language of the clause which defines coverage E. It is our opinion that we are not. Coverage F and the language in the policy defining it are no part of the contract of insurance made between appellant and appellee. It is declared in Item 3, quoted above, that 'The limit of the company's liability against each such coverage shall be as stated herein, subject to all the terms of this policy having reference thereto.' Appllant's liability can be neither enlarged nor restricted by the language found in coverages not contracted for. Appellee is not charged with notice of the language pertaining to coverages not in his contract of insurance, and there is nothing in the evidence to show that appellee had actual knowledge of the language pertaining to coverage F. As we view the matter, we must interpret coverage E, and find the limits of liability under such coverage, by looking to the language of that coverage.

Stripped of words that have no application to the present loss, coverage E provides insurance against 'direct and accidental loss of or damage to the automobile, * * * caused by * * * external discharge or leakage of water except loss resulting from rain, snow or sleet.' It appears to be conceded that the loss it not one to be treated as one resulting from rain after the rain had fallen and the water had formed into a flood. Poole v. Sun Under-writers Ins. Co. of New York, 65 S.D. 422, 274 N.W. 658. We get at once to the question, Was the flood a leakage or discharge of water?

There are some general rules of construction which may properly be applied to the case before us. 'Insurance policies are contracts, and are governed by the rules of interpretation which are applicable to contracts generally, and this, notwithstanding the rule that contracts of insurance are to be strictly construed in favor of the insured.' 24 Tex.Jur., p. 696. 'The language used must be construed according to the evident intent of the parties to be derived from the words used, the subject matter to which they relate, and the matters naturally or usually incident thereto.' Id., p. 699. 'If the contract of insurance is expressed in plain and unambiguous language, the courts will not undertake to construe it otherwise than as the parties themselves intended.' Id., p. 699. '* * * if the language used is ambiguous and obscure and does not itself disclose the intent, resort may be had to usage or to the circumstances existing at the time the contract was made.' Id., p. 700. 'The language used in a policy should be given a fair and reasonable...

To continue reading

Request your trial
1 cases
  • Glens Falls Ins. Co. v. McCown, A-2718
    • United States
    • Supreme Court of Texas
    • January 10, 1951
    ...insurance policy for water damage to seven automobiles. A trial court judgment for respondent was affirmed by the Court of Civil Appeals. 228 S.W.2d 949. As a dealer in automobiles, respondent bought from petitioner a policy which insured him against 'direct and accidental loss of or damage......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT