Gonzales v. Farmers Insurance Exchange

• Decision Date: 17 December 1965
• Docket Number: No. 4016,4016
• Citation: 399 S.W.2d 888
• Parties: Hilliard GONZALES et al., Appellants, v. FARMERS INSURANCE EXCHANGE, Appellee.
• Court: Texas Court of Appeals

Page 888

399 S.W.2d 888

Hilliard GONZALES et al., Appellants, v. FARMERS INSURANCE EXCHANGE, Appellee.

No. 4016.

Court of Civil Appeals of Texas, Eastland.

Dec. 17, 1965.

Rehearing Denied Feb. 4, 1966.

Everett & Brasseaux, Houston, Charles B. Everett, Houston, for appellants.

Baker, Botts, Shepherd & Coates, Houston, William C. Bullard, Houston, for appellee.

WALTER, Justice.

Hilliard Gonzales and Noe Mata filed suit against Farmers Insurance Exchange for benefits under a family automobile policy written for Ramon Gonzales, the father of Hilliard. The case was tried before the court without a jury. The court rendered a judgment that the plaintiffs take nothing. They have appealed.

Appellants contend the court erred in refusing to award them a judgment because they proved they were entitled to recover under the policy and the insurance company 'failed to plead and prove any exclusion denying coverage * * *.'

The facts were stipulated and are substantially as follows:

The insurance company issued a Texas Standard Family automobile policy to Ramon Gonzales covering a 1961 Dart with bodily injury, property damage, and $2,000.00 medical payment coverage. The policy also covered a 1949 Pontiac with bodily injury and property damage coverage only, no medical payment coverage. During the policy period the 1949 Pontiac was exchanged for a 1954 Olds. by the named insured. The appellants were passengers in the 1954 Olds. during the policy period, when it was involved in a collision and they were injured and received medical treatment. Hilliard Gonzales was the son of Ramon Gonzales and resident of his household. Noe Mata was neither a relative nor a member of Ramon's household. The policy was introduced in evidence by stipulation. The pertinent parts of the policy are as follows:

'PART II-EXPENSE FOR MEDICAL SERVICES

Coverage C-Medical Payments. To pay all reasonable expenses incurred within one year from the date of accident for necessary medical, surgical, X-ray and dental services, including prosthetic devices, and necessary ambulance, hospital, professional nursing and funeral services:

Division 1. To or for the named insured and each relative who sustains bodily injury, sickness or disease, including death resulting therefrom, hereinafter called 'bodily injury', caused by accident, while occupying or through being struck by an automobile.

Division 2. To or for any other person who sustains bodily injury, caused by accident, while occupying (a) the owned automobile, while being used by the named insured, by any resident of the same household or by any other person with the permission of the anmed insured; or (b) a nonowned automobile, if the bodily injury results from (1) its operation or occupancy by the named insured or its operation on his behalf by his private chauffeur or domestic servant or (2) its operation or occupancy by a relative and it is a private passenger automobile or trailer not regularly furnished for the use of such relative.

Definitions. The definitions under Part I apply to Part II, and under Part II:

'occupying' means in or upon or entering into or alighting from; 'an automobile' includes a trailer of any type.'

"owned automobile' means (a) a private passenger, farm or utility automobile described in the policy, (b) a trailer owned by the named insured, (c) a private passenger, farm or utility automobile ownership of any of which is acquired by the named insured during the policy period, provided (1) it replaces a described automobile, * * *.'

'When two or more automobile are insured hereunder, the terms of this policy shall apply separately to each * * *'.

'Exclusuons. This policy does not apply under Part II to bodily injury: (a) sustained while occupying (1) an owned automobile while used as a public or livery conveyance, or (2) any vehicle while located for use as a residence or premises; (b) sustained by the named insured or a relative (1) while occupying an automobile owned by or furnished for the regular use of either the named or any relative, other than an automobile defined herein as an 'owned automobile' * * *.'

The insurance company filed only a general denial. It did not plead any exclusion of the policy which would deny appellants a recovery. The appellants say, therefore, that the insurance company can not rely upon any exclusion in the policy because it failed to comply with Rule 94, Texas Rules of Civil Procedure, by pleading the exclusion.

Appellee contends that the appellants have waived any...