Great American Indemnity Co. v. City of Corpus Christi
| Decision Date | 19 December 1945 |
| Docket Number | No. 11520.,11520. |
| Citation | 192 S.W.2d 917 |
| Court | Texas Court of Appeals |
| Parties | GREAT AMERICAN INDEMNITY CO. v. CITY OF CORPUS CHRISTI. |
Appeal from District Court, Nueces County, 94th District; Paul A. Martineau, Judge.
Action by the City of Corpus Christi against the Great American Indemnity Company on a liability policy covering operation of a municipal airport. Judgment for plaintiff, and defendant appeals.
Reformed and affirmed as reformed.
John C. North, of Corpus Christi, and E. H. Crenshaw, Jr., of Kingsville, for appellant.
Hodge Thompson, of Corpus Christi, for appellee.
This is a suit upon an insurance policy issued to the appellee, City of Corpus Christi, as the assured, by the appellant, Great American Indemnity Company. The insurance contract covered generally the City's operation of a municipal airport, known as the Cliff Maus Field.
After a trial without a jury, judgment was rendered against appellant and in favor of appellee for the sum of Five Thousand Dollars.
Two questions are presented upon the main appeal. The first is whether or not the accident which is the basis of this litigation was covered by the insurance policy. The other question relates to the right of the City to demand reimbursement from the insurance company under the policy by reason of its having paid off a claim of liability asserted against it and reduced to judgment. The appellant had denied liability under the policy, and the prior litigation, which resulted in the judgment against the City, was controlled by attorneys selected by the City and not by the insurance company.
Findings of fact and conclusions of law were filed by the trial court.
The policy here involved provided that Great American Indemnity Company "does hereby agree with the Assured herein named (the City of Corpus Christi) subject to the limitations and conditions herein contained, as respects accidents occurring, while this policy is in force, upon or over the assured's premises described in statement 4 (Cliff Maus Field) or upon sidewalks, areas or other ways immediately adjacent to said premises, by reason of the use, maintenance, ownership or control of said premises, including making of ordinary repairs and ordinary alterations thereto, or by reason of assured's business operations described in statement 5 (operators of Airport) on said premises:
Under the heading of "Exclusions," the contract provided that, "This Policy does not cover: * * * (c) Accidents caused by reason of: * * * (4) the existence, maintenance or use of any watercraft or aircraft owned, hired or controlled by (but not excluding the temporary direction of aircraft not owned or hired by the Assured which it may be necessary for the Assured to exercise in properly directing the operation of aircraft over and above said premises) or in the custody of, the Assured or his agents, employes or pupils; * * *."
On January 30, 1938, John Greene, a minor, three years of age, was severely injured at Cliff Maus Field, of which O. G. Corbin was the then acting manager for the City of Corpus Christi. An airplane owned by Corbin was being pushed out of a hangar under the direction of Corbin and with the assistance of other persons then in and about said airport. This plane was pushed against said child so that the wheel thereof passed upon and rested for a while upon the child's body, causing severe bodily injuries.
The appellant contends that as the plane which injured the minor, John Greene, was owned by Corbin, the manager of the airport, the accident was not covered by its insurance policy. The trial court found that at the time of the accident the "airplane was being pushed out of the hangar by O. G. Corbin and J. G. McNeill for the purpose of permitting the said J. G. McNeill to fly said plane to test the sound equipment," which was installed on said plane so that it could be used for advertising purposes.
The City requested the court to find that the injury to John Greene occurred while the airplane involved was "being moved under the direction of the airport manager to permit one Jeter to get another airplane out of the hangar for the said Jeter."
The trial court refused to make this finding, but did make an additional finding stated as a conclusion of law to the effect that "the evidence in this case is sufficient to show that the aircraft which injured John Greene, a minor, was under the temporary directions of the Airport Manager of the Corpus Christi Municipal Airport, and that the directions exercised were necessary in properly directing the operation of aircraft over and about said premises."
Upon the basis of its findings, the trial court held that the accident to the minor, John Greene, was embraced within the terms and provisions of the policy and rendered judgment accordingly.
Upon the trial Corbin testified that his plane was being moved, at the time the Greene boy was injured, in order "to get another airplane for pilot Jeter, one of Tom Graham's ships." The witness W. G. Blake, Jr., who was present at the time the Greene boy was injured also testified that the plane was "being moved in order that Tom Graham's plane could be moved out of the hangar." The source of this witness' information is not clear. The appellant introduced in evidence prior statements made by Corbin to the effect that the plane was being moved so that McNeill might take the same into the air and test certain sound equipment installed in and upon the airplane. The trial court's finding as to the purpose for which the plane was being used is apparently supported by testimony which was admitted for impeachment purposes only. However, as we construe the exclusion clause relied upon by appellant, it is not dependant upon any particular mental intention or purpose entertained by the director of the airport at the time of the movement of the plane in question. The plane was being moved under the direction of the airport manager. The plane was not owned or hired by the City of Corpus Christi. The direction of the movement of planes in and out of hangars or places of storage maintained by the municipality comes under the head of directing the operation of aircraft about the premises and consequently comes within the "exception to the exception" above quoted. We sustain the trial court's action in so holding.
As to the second question presented upon this appeal, it appears that George W. Greene, father of the injured boy, filed two suits against the City of Corpus Christi. In one suit, Greene sought a recovery of $14,000 against the City for damages which he sustained as the father of the injured boy. The second suit was...
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