Home Ins. Co., N. Y., v. Rose
| Citation | 255 S.W.2d 238 |
| Decision Date | 16 June 1952 |
| Docket Number | No. 6227,6227 |
| Parties | HOME INS. CO., NEW YORK, v. ROSE. |
| Court | Texas Court of Appeals |
Thompson, Knight, Wright, Weisberg & Simmons, Dallas, for appellant.
Ratliff, Conner & Walker, Spur, for appellee.
On June 6, 1951, the appellee, Joe M. Rose, signed an application for hail insurance on his cotton crop in which he stated that on June 1, 1951, his crop was 'up and showing a good stand.' In compliance with this application the appellant, The Home Insurance Company, New York, issued a policy of insurance. The 10th condition of the policy provides as follows:
'Not to exceed one-third (1/3) of the insurance per acre applied for hereunder shall take effect before noon on the fifteenth day after the crop was up and showed a stand, and not to exceed two-thirds (2/3) of the insurance per acre applied for hereunder shall take effect between noon on the fifteenth day and noon on the thirtieth day after the crop was up and showed a stand, the date on which the crop was up and showed a stand being stated in the insured's application.'
On June 15, 1951, at 8:30 p. m., the appellee's cotton crop was totally destroyed by hail. He submitted proof of his loss claiming that the appellant owed him $2,700 under the two-thirds provision of the insurance policy. The appellant refused to pay this amount but did offer to pay $1,350 under the one-third provision of the policy. Thereafter, appellee filed this suit alleging that the 10th condition of the insurance policy (which we have quoted above) is ambiguous and subject to construction by the court. He insists that the policy is subject to two constructions: (1) that in computing the 15-day period covered by the one-third provision, June 1, 1951, the date the crop was up and showed a stand, was intended to be taken into account; or (2) the policy is subject to the construction that it was not intended the computation should take June 1 into consideration. The appellant, on the other hand, alleged that the policy was unambiguous and was subject to but one construction, i. e., that the day the crop was up and showed a stand was not to be taken into account in computing the 15 days. The question, then, is whether, under the language of the policy, June 1, is the first day of the 15-day period which pays the appellee only one-third of the loss per acre. This amounts to $1,350. If this is so, then 8:30 p. m., of June 15, the hour the crop was destroyed, is without this period and is within the 15-day period paying two-thirds of the loss per acre. This sum amounts to $2,700. The issue therefore between the appellee, Joe M. Rose, and the appellant, The Home Insurance Company, New York, is whether the appllee is entitled to recover the sum of $2,700 or is entitled to recover only the sum of $1,350. The trial court's judgment was in favor of the appellee.
In our opinion the language of the policy is ambiguous. In case of ambiguity our courts adopt the construction of the policy most favorable to the insured. In 24 Tex.Jur. 705, it is said:
This rule, relating to ambiguities, however, does not permit courts to remake policies or to change the face of their plain and explicit terms. Northwestern Casualty & Surety Co. v. Barzune, Tex.Civ.App., 42 S.W.2d 100, 102.
Since we have determined that the 10th condition named in the...
To continue reading
Request your trial
-
Home Ins. Co., N. Y. v. Rose
...is given, he is entitled to recover $1,350. The trial court's judgment for $2,700 was affirmed by the Court of Civil Appeals. 255 S.W.2d 238. On June 6, 1951, respondent made application for the policy in the amount of $4,500, with a ten per cent. deductible clause, and the policy was execu......