Birmingham Fire Ins. Co. of Pa. v. Newsom Truck Lines, Inc.

• Decision Date: 29 April 1965
• Docket Number: No. 14571,14571
• Citation: 390 S.W.2d 537
• Parties: BIRMINGHAM FIRE INSURANCE COMPANY OF PENNSYLVANIA, Appellant, v. NEWSOM TRUCK LINES, INC., Appellee.
• Court: Texas Court of Appeals

Page 537

390 S.W.2d 537

BIRMINGHAM FIRE INSURANCE COMPANY OF PENNSYLVANIA, Appellant, v. NEWSOM TRUCK LINES, INC., Appellee.

No. 14571.

Court of Civil Appeals of Texas, Houston.

April 29, 1965.

Rehearing Denied May 27, 1965.

Fulbright, Crooker, Freeman, Bates & Jaworski, Newton Gresham and Tom Connally, Houston, for appellant.

Oldham & Lorance, Arthur Stamm, Jr., Houston, for appellee.

WERLEIN, Justice.

Appellee, Newsom Truck Lines, Inc., brought this suit against appellant on a 'Motor Truck Cargo Policy' to recover damages allegedly resulting to a General Electric circuit breaker which, while being transported on appellee's truck, struck an overhanging limb. The facts were stipulated by the parties and the trial judge rendered judgment for the amount of the agreed loss less the deductible amount provided for in the policy. It was stipulated that the circuit breaker constituted a high load rising to a height of several feet above the cab of the truck, and that no part of the truck was in contact with the overhanging limb which the circuit breaker struck.

In its one point of error appellant asserts that the trial court erred in construing the phrase '* * * accidental collision of the vehicle with any other vehicle or object * * *' so as to afford coverage to a collision between an overhanging limb and protruding cargo when no portion of the truck came in contact with the limb.

The policy insures appellee, 'as provided in the form attached on shipments of lawful goods and merchandise (hereinafter called property) described therein, while in or on the vehicles described and in transit within the territory prescribed, against loss or damage caused, while this policy is in force, by the perils specified.' (Emphasis added.)

The 'Truckmen's Form' attached to and forming a part of the policy issued to appellee provides:

'This policy covers the liability of the Assured as carrier, bailee or warehouseman under tariff, bill of lading or shipping receipt issued by the Assured, for direct loss or damage, from perils hereinafter specified, on shipment of lawful goods or merchandise (hereinafter called Property) consisting of OIL FIELD AND/OR CONTRACTOR'S MACHINERY OR EQUIPMENT while loaded for shipment and in transit in or on vehicles owned, leased or operated by the Assured * * * within the Continental United States and Canada.' (Emphasis supplied.)

The Truckmen's Form attached also provides:

'THIS POLICY INSURES the Assured's Liability for Loss of or Damage to Property Insured Hereunder Directly Caused by:

'(a) fire, including self-ignition or internal explosion of the vehicle;

'(b) collision, i. e., accidental collision of the vehicle with any other vehicle or object (the striking of curbing or any portion of the roadbed or the striking of rails on ties of street, steam or electric railroads, or contact with any stationary object in backing for loading or unloading purposes, or the coming together of trucks and trailers during coupling or uncoupling, shall not be deemed a collision);

'(c) overturning of the vehicle;

'(d) collapse of bridges or docks;

'(e) rising navigable waters or river floods;

'(f) perils of the seas, lakes, rivers or inland waters while on ferries only;

'(g) cyclone, tornado or windstorm, excluding loss or damage caused by hail, rain, sleet or snow, whether or not driven by wind.'

The sole question before this Court is whether the damage to the circuit breaker is within the coverage afforded by the policy since no part of the truck actually came in contact with the limb. Appellant contends that the foregoing provision is clear and unambiguous and hence there can be no recovery by appellee. There are several Texas cases apparently holding contrary to such contention. The Supreme Court of Texas has not passed on the question. There is a division of authority in other states. In some jurisdictions the foregoing provision has been construed in a manner which would permit recovery under the circumstances of the instant case, while in other jurisdictions recovery has been denied.

In Garford Trucking v. Alliance Ins. Co. of Philadelphia, 1952, 2nd Cir., 195 F.2d 381 the policy contained the following provision: 'd. Collision of vehicle, overturning or other accident to the conveyance.' In such case no part of the truck struck the overhead bridge nor was the truck damaged in any way, but the turbine which was being transported sustained damage when it came into contact with the bridge. The court held that the assured could recover, since the occurrence came within the provision 'other accident to the conveyance.' The court did not base its decision upon the collision provision in the policy.

In Employer's Liability Assurance Corporation v. Groninger & King, Tex.Civ.App.1956, 299 S.W.2d 175, error ref., n. r. e., the policy contained provisions almost identical with the provisions of the policy in the instant case, with respect to collision and overturning of the vehicle or conveyance. The court in its opinion considered both such provisions and affirmed the judgment of the trial court in favor of the assured apparently on both grounds. The court said:

'There is a division of authority as to whether there is liability when only the cargo and not the carrying truck itself makes contact with an object. This division of authority is recognized in Garford Trucking Co., Inc., v. Alliance Ins. Co., 2 Cir., 195 F.2d 381, and in 36 A.L.R.2d 506, 523, 526. In the Garford case the court held that there was liability when only the cargo made contact with an object. In our opinion the Texas urle is that under policies such as we have here, it is sufficient when the load or cargo collides with an object, though the carrying truck itself may not make actual contact with the object. Continental Ins. Co. v. Griffin, Tex.Civ.App., 218 S.W.2d 350; Mercury Ins. Co. v. Varner, Tex.Civ.App., 231 S.W.2d 519.'

It will be noted that the court in making the foregoing statement relied upon Garford Trucking v. Alliance Ins. Co. of Philadelphia, supra, although the Court in that case did not base its decision upon the collision provision of the policy, and also relied upon two cases decided by the Eastland Court of Civil Appeals, with no writ history.

In Continental Ins. Co. v. Griffin, Tex.Civ.App.1949, 218 S.W.2d 350, one Paul Griffin, a house mover, who owned house moving equipment consisting of a truck, skids and dollies, obtained an insurance policy from Continental Insurance Company insuring him against damage to houses while on his truck in transit. The insurance policy contained the same provision with respect to collision as the policy in the instant case. The printed part of the policy provided for insurance against damage to goods and merchandise, consisting principally of 'houses', while being transported. The word 'houses' was typewritten into the printed form. While the assured was moving a house on his truck along a highway, the house struck a culvert. Neither the truck nor the trailer struck anything. The court said:

'The policy plainly shows that it was intended to cover damage to a house while being transported on Griffin's truck. We think it was the intention of the parties to insure Griffin against damage as a result of an acidental collision of a house on the truck with any other object.'

In Mercury Ins. Co. v. Varner, Tex.Civ.App., 231 S.W.2d 519, the appellee alleged that he was moving a drilling mast on a truck and trailer from one location to another. The fifth wheel device holding the kingpin broke or came loose, whereupon the trailer became detached and the load fell to the ground, breaking and damaging the drilling mast. The court properly held that the tipping of the mast on the trailer, and the resultant fall was a partial overturn that came within the meaning and intent of the term 'overturn' as used in the policy. After so deciding, the court said: 'We are also of the opinion that there was a collision within the meaning of the policy.' Having decided the case under the overturning provision of the policy, it was, of course unnecessary for the court to add the additional sentence with respect to collision.

In the instant case there was typewritten in the printed Truckmen's Form the words 'OIL FIELD AND/OR CONTRACTOR'S MACHINERY OR EQUIPMENT'. No specific property was described as was done in Groninger & King, supra. In that case the parties knew that houses are necessarily cumbersome objects to transport and quite likely to protrude in all directions from the moving vehicle, so that it would be practically impossible for the truck to collide with anything since more or less protected by the protruding house. The parties contracted for insurance with respect to specific property which was described in the policy. In the present case, however, oil field and/or contractor's machinery or equipment may be large or small, and consist of many things. The parties did not contract with respect to the transportation of any specifically described property which would necessarily or in all probability extend above the top of the truck or beyond the sides or rear thereof.

We have read the out-of-state cases cited by appellee, and also those cited by appellant. We have concluded that the decisions relied upon by appellant are better...