Fort Worth Lloyds Ins. Co. v. Willham
| Decision Date | 06 June 1966 |
| Docket Number | No. 7616,7616 |
| Citation | 406 S.W.2d 76 |
| Parties | FORT WORTH LLOYDS INSURANCE COMPANY, Appellant, v. Louis Earl WILLHAM et ux., Appellees. . Amarillo |
| Court | Texas Court of Appeals |
Crenshaw, Dupree & Milam, Lubbock, Cecil Kuhne, Lubbock, of counsel, for appellant.
Key, Carr & Clark, Lubbock, Aubrey J. Fouts, Lubbock, of counsel, for appellees.
This is an appeal from a judgment based upon a jury verdict for insureds, Louis Earl Willham, et ux., against Fort Worth Lloyds Insurance Company in a suit upon an insurance policy covering a vacant residence owned by appellees Willham in Lubbock. The damages awarded resulted from water leakage throught burst water pipes in the attic connected with the hot water circulating system of the residence. The discovery of the flooded house was made on December 21, 1964. The week previous the temperature in Lubbock had been down to 12 or 14 above zero.
Appellees had moved out of the state, placed their home on the market and listed it for sale with a real estate agent. They left one key with the agent and one with her brother-in-law and sister, Mr. and Mrs. Robert Mampel, so they could check on the place during the time it was vacant. The house was centrally heated by gas. They had that service and the telephone service terminated. The water and electricity were left on for the convenience of the real estate agents showing the house to prospective purchasers. The agency with which it was first listed did not sell the place within three months, so it was then listed with Pat Garrett, another real estate agent. He suggested to the owners it might expedite the sale if the house was painted, so their real estate agent, with appellees' permission, employed painters to paint the house.
In July Mr. Mampel noticed water leaking from the water-evaporated air conditioner mounted on a stand outside of the house. He repaired the tubing. Approximately two weeks later he went back and found the plastic line had been pulled loose. At that time he cut the water supply to the house off at a valve in the back yard, then went into the house and opened the faucets in the kitchen and two bathrooms and flushed the water out of the commode.
In August Mr. Mampel went back after a gardener had mowed the lawn and discovered the water supply to the house had been cut on. He cut it off and went back through the same procedure inside and outside the house again. In October or early November he went back and checked on the house again and primarily checked to see that the water supply to the house was off and the faucet open in the kitchen . It was a dual type faucet that turned on both the hot and cold water by pushing the lever upward. The water supply to the house was off and the kitchen faucet open.
Mr. Mampel testified that about 5:30 or 6:00 o'clock p.m., December 21, his 17-year-old son while driving by the subject house saw two men '* * * in there--by their front door, and he stopped to see what was going on, and he looked in and--he didn't know the men, who they were, but he looked in the hallway, the entrance hall, was flooded--he came home and reported to us that there was water all over the Willham's home * * *.'
Don Anderson, foreman of a plumbing company and with twenty years experience as a plumber, repaired the burst pipes in the attic. He testified that cutting off the stop and waste valve outside the house drained the cold water out of the house and opening any two faucets inside the house drains the hot water circulating system. He said opening one faucet probably would drain the hot water but there is a possibility of an air lock. He said opening a valve at the water heater probably would not drain the hot water system as well as if the faucets in the house were open. He said the circulating system held about two or three gallons of water and the probability was if the water was cut off outside and the circulating system froze with one faucet open the pipes would not burst and no damage would be done. He testified in effect that in his opinion the water was on to the house when the freeze took place or there could not have been the extensive flooding of the house and as much damage. The policy of insurance in question under Section II, Subsection A of 'Exclusions' contained an exclusion clause providing:
'Exclusions: This policy does not insure against--
A. Loss to either plumbing or heating systems including appliances, or by leakage or overflow from such systems or appliances, caused by freezing while the described building(s) is vacant or unoccupied, Unless the insured shall have exercised due diligence with respect to maintaining heat in the building(s) or unless such systems and appliances had been drained and the water supply shut off.' (Emphasis added.)
Another very material condition to this law suit shown under Subsection A of Section VI 'Other Provisions' which we shall call the 'Prejudiced' clause in the policy provides:
'Other Provisions:
A. Control of Property: This insurance shall not be prejudiced by any act or neglect of any person (other than the named insured) When such act or neglect is not within the control of the named insured.' (Emphasis added.)
The jury found (1) the water supply to the house had been shut off prior to the time the pipe froze and burst; (2) that the water system had been drained prior to the time the pipe froze and burst; and (3) that the water supply was not turned on prior to the loss by anyone under appellees' control.
Under the Exclusions A clause above quoted we need not give any consideration to that part concerning diligence with respect to maintaining heat in the building. It is admitted by appellees that they had the heat shut off. However, the word 'or' used in the disjunctive separates that clause from the one providing 'unless such systems and appliances had been drained and the water supply shut off.'
If we understand appellant's complaint concerning the clause with respect to the drainage of the systems and appliances and shutting off the water supply, it is that the court committed reversible error in denying an instructed verdict for the reason '* * * there is no evidence that the plumbing system was drained and the water supply shut off at the time of the loss by leakage caused by freezing, as provided by the exclusion.'
We are unable to agree with appellant's contention in this respect . The policy does not insure against loss unless such systems and appliances Had been drained and the water supply shut off. (Emphasis added.) The clause is in the past tense. There is probative evidence from which the jury could and did find that the water supply to the house had been shut off and the systems and appliances drained prior to the time the pipe burst. The general rule of constrution of such insurance policies has been stated by the Supreme Court of Texas in Providence Washington Insurance Company v. Proffitt, 150 Tex. 207, 239 S.W.2d 379, as follows:
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