Davis v. National Casualty Co.

• Decision Date: 08 December 1943
• Docket Number: No. 8162.,8162.
• Citation: 175 S.W.2d 957
• Parties: DAVIS v. NATIONAL CASUALTY CO.
• Court: Texas Supreme Court

Page 957

175 S.W.2d 957

DAVIS v. NATIONAL CASUALTY CO.

No. 8162.

Supreme Court of Texas.

December 8, 1943.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Action by C. A. Davis against the National Casualty Company on a travel and pedestrian accident policy for the loss of his foot. To review a judgment of the Court of Civil Appeals, 172 S.W.2d 131, reversing a judgment of the District Court for plaintiff and rendering judgment for defendant, plaintiff brings error.

Judgment of Court of Civil Appeals reversed and judgment of District Court affirmed.

Scott Toothaker and Strickland, Ewers & Wilkins, all of Mission, for plaintiff in error.

Kelley & Looney and L. Hamilton Lowe, both of Edinburg, for defendant in error.

SMEDLEY, Commissioner.

Respondent issued to petitioner an accident policy, insuring him against death or dismemberment resulting from bodily injury, if sustained, among other means, "By being struck, knocked down or run over while walking or standing on a public highway, by a vehicle propelled by Steam, Cable, Electricity, Naphtha, Gasoline, Compressed Air, Liquid or Horse Power (excluding injuries sustained while on a railroad right of way, except an established crossing, or sustained while doing work on a public highway or railroad right of way)."

According to the agreed statement of facts on which the case was tried, petitioner was injured while working for his employer, a rig-building contractor, and while engaged in moving a derrick from one location in the oil field to another over a public highway. The derrick was being pulled on rollers by a caterpillar tractor which was propelled by gasoline. Petitioner had been carrying rollers from the back to the front of the derrick and placing them under it, and while he was standing or walking on the highway, his right foot was caught under a roller with the derrick on it, near the front of the derrick, as it was being pulled by the tractor. His foot and ankle were crushed so that it was necessary to amputate the foot.

The trial court's judgment in favor of petitioner for $500, the amount of indemnity provided by the policy for the loss of a foot, and for $60 as penalty and $140 as attorney's fees was reversed by the Court of Civil Appeals and judgment was rendered by that court that petitioner take nothing. 172 S.W.2d 131. The Court of Civil Appeals held that neither the derrick nor the roller under it was a "vehicle" and consequently that petitioner was not struck by a "vehicle" within the meaning of the quoted paragraph of the policy.

Jurisdiction in this court is alleged on account of conflict between the decision of the Court of Civil Appeals in this case and the decision of the Court of Civil Appeals for the Ninth Supreme Judicial District in Commercial Standard Insurance Company v. McKinney, 114 S.W.2d 338, 339.

In that case the policy of insurance on which the suit was brought exempted the insurer from liability for injuries "caused by the ownership, maintenance or use of a vehicle of any description". The plaintiff, a road contractor, was operating on the road a scarifier drawn by a caterpillar tractor, and as he was preparing to park the machines for the night and while the machines were on the "wrong side" of the road without lights, a passenger bus collided with them. The operator of the tractor and scarifier adjusted the claims made against him by passengers in the bus who were injured in the collision and sued the insurer for indemnity. The controlling question in the case was whether the injuries were or were not caused by the ownnership, maintenance or use of a vehicle. The Court of Civil Appeals held that they were so caused.

The conflict that confers jurisdiction upon this court exists when the decisions are based on practically the same state of facts and announce antagonistic conclusions. Sun Mutual Insurance Co. v. Roberts, Willis & Taylor Co., 90 Tex. 78, 37 S.W. 311; Garitty v. Rainey, 112 Tex. 369, 247 S.W. 825; Layton v. Hightower, 118 Tex. 166, 12 S.W.2d 110; Employers' Liability Assurance Corp. v. Trane Co., 139 Tex. 388, 163 S.W.2d 398. It is not essential that the facts of the two cases be identical. We believe that the facts of this case and the facts in Commercial Standard Ins. Co. v. McKinney, Tex.Civ.App., 114 S.W.2d 338, are so nearly the same that they raise for decision the same question of law.

In each of the two cases the decision turned on the question whether the contrivance or device that was operated on the road and caused the injury was or was not a "vehicle" within the meaning of a policy of insurance which did not define the word. In this case the contrivance or device was a tractor and the attached derrick resting on and carried by rollers placed under it. In the other case the contrivance or device was a tractor and the attached scarifier carried on its own wheels. In this case it was held by the Court of Civil Appeals that the contrivance or device was not a vehicle; in the other case it was held that the contrivance or device was a vehicle.

Since the insurer did not in its policy define the word "vehicle", it is to be construed according to its ordinary import or as the word is generally defined. Many definitions may be found in the decisions. Often the word is defined with reference to a statute or ordinance. No statutory definition is pertinent in this case, but it may be observed that the definition of "vehicle" appearing in the statutes regulating the registration of motor vehicles used on the public highways and providing for drivers' licenses is substantially the same as the definition generally given. It is: "`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." Section 1, Subdivision (a), chapter 88, Acts Second Called Session 41st Legislature, page 172; Section 1, Subdivision (a), Article I, Chapter 173, Acts Regular Session, 47th Legislature, page 245; Vernon's Annotated Civil Statutes, Articles 6675a — 1, 6687b.

The definition given in Corpus Juris and quoted in the opinion of the Court of Civil Appeals is :

"Vehicle. As used in common speech, the word has a varied and somewhat extended meaning. `Vehicle' has been defined as a conveyance; a means of...