Home Ins. Co., N. Y. v. Rose
| Decision Date | 18 February 1953 |
| Docket Number | No. A-3853,A-3853 |
| Citation | 255 S.W.2d 861,152 Tex. 222 |
| Parties | HOME INS. CO., NEW YORK, v. ROSE. |
| Court | Texas Supreme Court |
Thompson, Knight, Wright & Simmons and Richard E. Gray, Jr., Dallas, for petitioner.
Ratliff, Conner & Walker, Spur, for respondent.
The decision of this case turns on the construction of a paragraph of a policy by which petitioner, Home Insurance Company, New York, insured respondent, Joe M. Rose, against loss or damage to his growing cotton by hail. If one construction is given, respondent is entitled to recover $2,700; if the other construction 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 executed and delivered on June 7, 1951. Respondent stated in his application that the crop was 'up and showing a good stand' on June 1, 1951. The crop was totally destroyed by hail on June 15, 1951, at 8:30 P.M.
As condition No. 10 the policy contained the following:
'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.'
The decision of the Court of Civil Appeals rests on its conclusion that the quoted condition of the policy is ambiguous in that it may mean either that June 1 is to be included or that it is to be excluded in computing the period at the end of which liability for one-third of the insurance terminates and liability for two-thirds begins. Having determined that there was ambiguity, that Court adopted the construction most favorable to the insured and affirmed the trial court's judgment on the basis of liability for two-thirds of the insurance.
When June 1 is included in making the computation, the period for the one-third liability terminated at noon on June 15, and the loss occurred after the period for the two-thirds liability had begun; and when June 1 is excluded in making the computation, the period for the one-third liability did not terminate until noon on June 16, and the loss occurred within the period for the one-third liability.
We cannot find ambiguity in condition No. 10 of the policy quoted above. The language is that not to exceed one-third of the insurance shall take effect before noon on the fifteenth day after the crop was up and showed a stand. And in the same sentence is the provision, 'the date on which the crop was up and showed a stand being stated in the insured's application.' The application states that the crop was up and showing a good stand on June 1, 1951. When the whole of the condition quoted is considered, it clearly means, in our opinion, that not more than one-third of the insurance shall take effect before noon on the fifteenth day after the date on which the crop was up and showed a stand.
The established rule in this state and in most of the other states is that when time is to be computed from or after a certain day or date, the designated day is to be excluded and the last day of the period is to be included unless a contrary intent is clearly manifested by the contract. Lubbock v. Cook, 49 Tex. 96; Hunter, Evans & Co. v. Lanius, 82 Tex. 677, 18 S.W. 201; Aetna Life Insurance Co. v. Wimberly 102 Tex. 46, 112 S.W. 1038, 23 L.R.A.,N.S., 759; Hardy v. City of Throckmorton, Tex.Civ.App., 70 S.W.2d 775, application for writ of error refused; Gray v. Port Arthur City Lines, Tex.Civ.App., 149 S.W.2d 1030; 52 Am.Jur., pp. 348-350, Sec. 23, p. 352, Sec. 27; Note 137 A.L.R. pp. 1155-1174.
We do not find in the contract anything manifesting an intention to include the first day in the computation of the period. And the application of the general rule in this case does not involve inconsistency with or contradiction of the time when the policy became operative, as in Acme Life Insurance Co. v. White, 99 S.W.2d 1059, 1060, cited in the opinion of the Court of Civil Appeals. That case differed further from this case in that the period specified was...
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