Commercial Standard Ins. Co. v. McKinney

• Decision Date: 25 February 1938
• Docket Number: No. 3272.,3272.
• Citation: 114 S.W.2d 338
• Parties: COMMERCIAL STANDARD INS. CO. v. McKINNEY.
• Court: Texas Court of Appeals

114 S.W.2d 338

COMMERCIAL STANDARD INS. CO. v. McKINNEY.

No. 3272.

Court of Civil Appeals of Texas. Beaumont.

February 25, 1938.

Rehearing Denied March 9, 1938.

Appeal from District Court, Nacogdoches County; C. E. Brazil, Judge.

Action upon the contractor's and manufacturer's public liability policy by R. W. McKinney against the Commercial Standard Insurance Company. Judgment for the plaintiff in the sum of $4,700.22, and defendant appeals.

Reversed and rendered.

Touchstone, Wight, Gormley & Price, of Dallas, for appellant.

Seale & Thompson, of Nacogdoches, for appellee.

WALKER, Chief Justice.

On the 12th day of November, 1934, appellee, R. W. McKinney, under a contract with the State Highway Department, was doing construction work on Highway No. 21 in Nacogdoches county, "scarifying" the road on a section three or four thousand feet long. His division extended west out of the city of Nacogdoches. The scarifier was being operated on the road, drawn by a caterpillar tractor; and, on that day, the tractor and scarifier had made several trips up and down the road. At the close of the day as the operators of the scarifier and tractor were preparing to park their two machines for the night, they were run into by a passenger bus, traveling west out of Nacogdoches; at the time and place of the accident the two machines were on the north side, the "wrong side," of the road without lights or any other danger sign to warn the public. Seven persons, traveling in the bus as passengers, were injured in the collision, and filed separate suits in the district court of Nacogdoches county against appellee for the damages suffered by them in the collision; the grounds of negligence alleged against appellee were predicated upon the operation by him of his tractor and scarifier on a public road. In adjusting these claims appellee paid the claimants $3,735.07.

At the time of the collision between the bus and appellee's tractor, he had a Contractors' and Manufacturers' Public Liability Policy with appellant, Commercial Standard Insurance Company, insuring him against claims for injuries to persons, or death of persons, resulting from his operations as a road contractor. The policy excepted the following risks from its coverage:

"VI. Exceptions to This Agreement. The Company shall not be liable for or on account of any claim alleging such injuries and/or death:

"(1) Caused by (a) any person employed by the Assured in violation of law as to age, or, if there is no legal age limit, under fourteen years, or any contract convict labor, or (b) any elevator or other platform elevating device, its appliances, shaft or hoistway, or any hoisting device operated through any hatchway, floor or sidewalk opening unless such elevator or hoisting device is covered hereunder by written permit endorsed on this Policy; or

"(2) Caused by the ownership, maintenance or use of a vehicle of any description or of any draft or driving animal; or caused by any aircraft; or

"(3) Caused by the handling, transportation, delivery, loading or unloading, installation, removal, maintenance, or mechanical demonstration of goods or products elsewhere than upon the Insured Premises unless covered hereunder by written permit endorsed on this Policy; or

"(4) Caused by the possession, consumption, or use of any article manufactured, handled, or distributed by the Assured unless covered hereunder by written permit endorsed on this Policy; or by accident occurring after final completion of the operations of the Assured at the place of occurrence of such accident; or

"(5) Caused by independent contractors or subcontractors, their agents or their employees; or

"(6) Caused by or through the making of additions to, structural alterations in, or the construction or demolition, in whole or in part, of any building, structure, sidewalk, or approach, or caused by the installation of any mechanical equipment, unless written permit for such work is endorsed on this Policy; or

"(7) For which liability of others has been assumed by the Assured under any contract or agreement, oral or written; or

"(8) For which the Assured is liable to the claimant under any Workmen's Compensation agreement, plan or law, or under contract or agreement, oral or written."

When demand was made upon appellee by the persons injured in the collision, he referred their claims to appellant; appellant denied liability under its policy. After the denial of liability, the claimants filed their suits against appellee and he furnished appellant with copies of these petitions, but it continued in its denial of liability, and refused to investigate the claims and to defend these suits. Thereupon, as stated above, appellee settled with the claimants and made demand upon appellant under his policy for reimbursement; when this demand was refused he filed this suit, praying for judgment for the amount paid out by him, and for an additional sum as attorney's fees. Appellant answered by demurrers, general and special, by general denial, and by special plea of section 2 to the coverage of the policy. The jury found that: (a) At the time of the accident the road immediately east of the place of the accident "was in a torn up condition"; (b) "that situation" was the proximate cause of the accident; (c) appellee "exercised ordinary care in settling the claims"; (d) the expenditure made by him in adjusting the claims was reasonable; and (e) the attorney's fees paid, and contracted to be paid, by him were reasonable. In entering judgment, the court made the following independent finding: "The Court finds as a matter of law from the evidence that the tractor, as being used at the time and place in question and in the manner in which it was being used, was not a vehicle as contemplated by the parties in the exceptions to coverage in the policy in question." On these findings judgment was entered in favor of appellee and against appellant for the sum of $4,700.22.

Appellee, in his testimony, gave the following description of his tractor and its use:

"Q. Mr. McKinney, about what is the weight of that machine? A. The machine weighs approximately 20,000 lbs.

"Q. To what uses do you put that machine in your operations? A. Road building work—drawing the scarifier and grader —power unit—anything to build a road and use for power.

"Q. Do you ever use it for the purpose of plowing up gravel beds or things of that nature? A. Yes, sir.

"Q. Do you ever haul anything on that grader? (Referring to tractor.) A. No, sir.

"Q. Do you ever use it for the purpose of conveying people? A. No, sir."

Opinion.

This was a public road accident. Appellee's contract with the Highway Commission required him to do the work covered by his policy of insurance on a public road. Under the contract, his principal use of the tractor was on a public road. By this we mean to say that appellee contracted to do highway construction work, knowing that he would have to operate his machines on the highways. So, it must be concluded that the parties intended that appellee should obey the highway laws, and should operate his machines within the provisions of these laws, and that his machines should be "defined" as defined by these laws. We quote these definitions:

Article 6675a-1 of Vernon's Annotated Civil Statutes of Texas:

"Regulation of Vehicles.

"Definitions of terms. The following words and terms, as used herein, have the meaning respectively ascribed to them in this Section, as follows:

"(a) `Vehicle' means every device in, or by which any person or property is or may be transported or drawn upon a public highway, except devices moved only by human power or used exclusively upon stationary rails or tracks."

Article 6687a, Vernon's Ann.Civ.St.:

"Definitions.

"Section 1. The following words and phrases when used in this Act shall, for the purpose of this Act, have the meanings respectively ascribed to them in this Section except in those instances where the context indicates a different meaning:

"(a) `Vehicle': Every self-propelled device upon or by which any person or property is or may be transported or drawn upon a public highway, excepting devices moved by human power or used exclusively on stationary rails or tracks."

Article 827b of Vernon's Ann.Penal Code of Texas provides as follows: "The following words and phrases when used in this Act shall for the purpose of this Act have the meanings respectfully ascribed to them in this Section as follows:

"`Vehicle' means every device in, or by which any person or property is or may be transported or drawn upon a public highway, except devices moved only by human power or used exclusively upon stationary rails or tracks.

"`Motor Vehicle' means every vehicle as herein defined which is self-propelled."

Under these statutory definitions, the tractor was a "vehicle." The following authorities give application to definitions of "vehicles" as used in Highway Laws, taken from 3 Words and Phrases:

(a...