Alexander v. Firemen's Ins. Co.
| Decision Date | 23 October 1958 |
| Docket Number | No. 3584,3584 |
| Citation | 317 S.W.2d 752 |
| Parties | J. E. ALEXANDER, Appellant, v. FIREMEN'S INSURANCE COMPANY, Appellee. |
| Court | Texas Court of Appeals |
Andrew Campbell, Hamilton, for appellant.
Truman E. Roberts, Hamilton, Thompson, Coe & Cousins, Dallas, for appellee.
Plaintiff brought this suit against defendant upon a Texas Standard Fire and Extended Coverage Insurance Policy covering a lumber warehouse located in Hico, Texas. Plaintiff alleged that on 17 November 1956, during the effective term of the policy, a jet aircraft approached and passed (the area in which his property was located), flying at low altitude and at supersonic speeds; that such aircraft created a violent pressure disturbance and propelled shock waves or compression waves from such aircraft onto and against his building; that the force and pressure of such air disturbance, created by the aircraft, unseated the girders beneath the building and capsized it; that the policy of insurance issued to him by defendant Insurance Company provided for insurance occasioned by aircraft or by explosion; that damage to the building was proximately caused by the aircraft and the explosion resulting therefrom, and that his damage exceeded $3,000, the face amount of the policy. Defendant Insurance Company by answer plead a general denial, and further that the language concerning aircraft coverage provides for coverage only from falling aircraft and objects falling therefrom, and that a sonic boom was not an explosion.
Trial was to a jury. At the close of plaintiff's main evidence the Trial Court, upon defendant's motion, withdrew all issues from the jury, found that: 1) there was no proof that the sonic boom was an explosion, and that 2) the insurance policy aircraft coverage provisions did not cover the loss complained of; and rendered judgment that plaintiff take nothing.
Plaintiff appeals, contending: The Trial Court erred in holding as a matter of law 1) that plaintiff's loss and damage were not within the insured perils of the policy covering loss by aircraft; 2) that plaintiff's loss was not within the insured perils of the policy covering loss by explosion; 3) the trial court erred in withdrawing all issues from consideration of the jury and rendering judgment for defendant.
The applicable provisions of the insurance policy issued to plaintiff by the defendant Insurance Company are Section III. Specific Coverage Conditions: Provides that insurance provided under the Extended Coverage provisions shall include direct loss by windstorm, hurricane, hail, explosion, riot, civil commotion, smoke, aircraft and land vehicles.
'* * * Conditions Applicable Only to Damage by Aircraft and Land Vehicles: Loss by aircraft shall include direct loss by falling aircraft, or objects falling therefrom, but this Company shall not be liable for loss caused by any vehicle or aircraft (except falling aircraft) owned or operated by the insured, or by any tenant of the described premises, or by any agent, employee, or member of the household of either.'
The record reflects that plaintiff's building was constructed in 1954 of frame and metal, that it was well constructed and there was no visible evidence that it was unsafe or had deteriorated in any manner prior to the loss; that it was used as a warehouse for storing lumber; that it had a capacity of seven or eight boxcars of lumber and had been filled to capacity several times; that on 17 November 1956 it had 2 1/2 or 3 boxcars of lumber stored therein; that on such date a terrific blast or sonic boom occurred over Hico (the loudest ever heard by one witness); that the plaintiff's building immediately thereafter collapsed and was extensively damaged. It is common knowledge that when an airplane exceeds the speed of sound that a report is heard which is commonly called a sonic boom, and that some concussion or air pressure accompanies the sound.
The Trial Court held that the aircraft coverage provisions of the policy did not cover the loss plaintiff complained of. Analyzing the aircraft coverage provisions of the policy we observe that the insurance provided under the extended coverage provisions shall include loss by aircraft. Thereafter the policy further provides: 'Conditions applicable only to damage by aircraft * * * Loss by aircraft shall include direct loss by falling aircraft, or objects falling therefrom * * *'
Defendant Insurance Company in its brief contends that the conditions applicable to damage by aircraft, supra, wherein it is provided that loss by aircraft shall include falling aircraft, etc., by giving expression of one or more coverages by aircraft, as a matter of law, excludes all other losses caused by aircraft. And so the question before us for...
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