National Fire Ins. Co. v. Davis, 2442.

• Citation: 179 S.W.2d 316
• Decision Date: 03 March 1944
• Docket Number: No. 2442.,2442.
• Parties: NATIONAL FIRE INS. CO. v. DAVIS.
• Court: Court of Appeals of Texas

179 S.W.2d 316

NATIONAL FIRE INS. CO. v. DAVIS.

No. 2442.

Court of Civil Appeals of Texas. Eastland.

March 3, 1944.

Rehearing Denied April 7, 1944.

Appeal from District Court, Haskell County; B. C. Chapman, Judge.

Suit by Charles O. Davis against National Fire Insurance Company to recover upon insurance policy for loss, consisting of damages to merchandise, contained in a truck, caused by the overturning of the truck. From a judgment for plaintiff, the defendant appeals.

Affirmed.

Thompson, Knight, Harris, Wright & Weisberg, of Dallas, for appellant.

Ratliff & Ratliff, of Haskell, for appellee.

FUNDERBURK, Justice.

In this suit by Charles O. Davis against National Fire Insurance Company to recover upon an insurance policy for loss, consisting of damages to merchandise, contained in a truck, caused by the overturning of the truck while in transit from Rule, Texas, to Fort Worth, Texas, the court, in a non-jury trial, gave judgment for plaintiff, awarding him recovery in the principal sum of $663.83.

The only question presented for decision is whether the merchandise at the time the truck overturned was "in the custody of the assured" within the meaning of a limitation of coverage in the policy.

The facts as far as developed were undisputed. Gay, an employee of plaintiff and driver of the truck, stopped a few miles from Forth Worth and went into a roadside eating establishment to get something to eat. He left the truck unattended, facing toward Forth Worth, with motor running in order to charge weak batteries. In about fifteen or twenty minutes he was informed the truck had disappeared. It was found overturned upon the highway, back the other way from Fort Worth, approximately 500 yards up grade from where it had been stopped. It was undisputed that the only reasonable inference from the facts was that the truck could not have moved from the place where it was left by the driver to the place where it was overturned, except by human agency. The driver gave no one permission to move the truck.

The provision of the policy that the merchandise was insured "only while in the custody of the assured" was but one of several limitations upon the general coverage of the policy. One was that the "goods and merchandise" should be "lawful." Another, that the goods and merchandise should be "the property of the assured or sold by them [him?] and in course of delivery." Yet another was that the merchandise should be "actually in transit within the limits of the U.S. and Canada." Another was that the merchandise was insured only "while contained in or on" the thereinafter described "motor truck and/or trucks owned and operated by the assured." (There was a provision for substitution of trucks not here important.)

An express provision of the policy was:

"This Policy does not insure * * *

"(d) While the property insured hereunder is located:

"(1) In or on the premises of the Assured.

"(2) In any garage or other building where the truck or trucks herein described are usually kept."

The words "possession" and "custody" each have several different meanings. As to the former it has been said that "both in common speech and in legal terminology, there is no word more ambiguous in its meaning than possession." National Safe Deposit Co. v. Stead, 232 U.S. 58, 34 S.Ct. 209, 212, 58 L.Ed. 504. In the same connection it was said: "Custody may be in the servant and possession in the master." Id. We think, as will presently appear, the inquiry may well be confined to consideration of the meaning of "custody" as involved in any possible distinction between custody and possession. "Custody", according to 1 Bouv. Law Dict., Rawle's Third Rev., p. 741, "is the care and possession of a thing." Webster's International Dictionary defines "custody" as "A keeping or guarding; care, watch, inspection, for keeping, preservation, or security. * * * control of a thing or person with such actual or constructive possession as fulfills the purpose of the law or duty requiring it." The Century Dictionary gives this definition: "Keeping or guardianship; charge * * *." Corpus Juris Secundum, under the heading of "Custody", as applied to things, says: "It means to have in charge or safe-keeping, connotes control, and includes as well, although it does not require, the element of physical or manual possession, implying a temporary physical control merely, and responsibility for the protection and preservation of the thing in custody. * * * The term * * * carries with it the idea of the thing being within the immediate personal care and control of the person to whose custody it is subjected; charge; charge to keep, subject to order or direction; immediate charge and control and not the final absolute control of ownership." 25 C.J.S. p. 70.

Under the heading of "Custody of property", the same authority says: "The keeping of property by one who is charged with or who assumes responsibility for its safety; the care and charge of property for one who retains the right to control it; the charge to keep and care for the owner, subject to his order and direction, without any interest or right therein adverse to him; such a relation toward it as would constitute possession if the person having custody had it on his own account." Id.

As to "possession", 2 Bouv. Law Dict., Rawle's Third Rev., p. 2635, defines the word as: "The detention or enjoyment of a thing which a man holds or exercises by himself, or by another, who keeps or exercises it in his name." Webster's International Dictionary defines the word as follows: "Act, fact, or condition of a person's having such control of property that he may legally enjoy it to the exclusion of all others having no better right than himself. * * *." Among many definitions, Corpus Juris gives a very comprehensive one as follows: "The detention and control of the manual or ideal custody of anything which may be the subject of property, for one's use or enjoyment, either as owner or as the proprietor of a qualified right in it, and either held personally or by another who exercises it in one's place and name;" 49 C.J. 1093.

These definitions, it seems to us, warrant the observation of the Missouri Court that "all the definitions contained in recognized law dictionaries indicate that the element of custody and control is involved in the term `possession.'" State v. Lane, 221 Mo. App. 148, 151, 297 S.W. 708, 709.

For examples of decisions noting the distinction between custody...