Panhandle Gravel Co. v. Wilson

• Decision Date: 14 January 1952
• Docket Number: No. 6190,6190
• Citation: 248 S.W.2d 779
• Parties: PANHANDLE GRAVEL CO., Inc. v. WILSON.
• Court: Texas Court of Appeals

Page 779

248 S.W.2d 779

PANHANDLE GRAVEL CO., Inc. v. WILSON.

No. 6190.

Court of Civil Appeals of Texas, Amarillo.

Jan. 14, 1952.

Rehearing Denied March 10, 1952.

Underwood, Wilson, Sutton, Heare & Boyce, Amarillo, for appellant.

Merchant & Fitzjarrald, Amarillo, for appellee.

LUMPKIN, Justice.

On December 14, 1949, the appellee, C. W. Wilson, was a passenger in an automobile traveling on the Amarillo to Dumas, Texas, highway. While passing a gravel truck he was injured by a 2-pound rock which came through the windshield and struck him in the face. The appellee and leged that the rock fell from a truck owned and operated by Fred E. Barger and loaded with gravel belonging to the appellant, Panhandle Gravel Company, Inc. He contended that the appellant had improperly loaded the truck, that this act was one of negligence and the proximate cause of his injuries. Likewise, the appellee sought to impose liability on the truck driver Barger on the theory that he had improperly loaded the truck and that he was negligent in driving it while improperly loaded. Also he sought to impose liability upon D. E. Basden, Barger's employer, on the theory that he had contracted with the appellant to haul its gravel and that he was negligent in the same particulars in which the driver Barger was negligent. In addition to resisting the appellee's suit, each of these sought indemnity, or in the alternative, contribution from the others.

In response to special issues the jury found that the appellant was negligent in the loading of Barger's truck; that Barger was negligent in driving his truck upon the highway, loaded as it was; and that each of these acts of negligence was a proximate cause of the appellee's injuries. The court found that no cause of action existed against Basden and on its own motion rendered judgment denying any recovery against him. Damages in the sum of $30,000 were assessed against the appellant and Barger. Although the court denied the motions for indemnity urged separately by the appellant and Barger, it did grant their motion for contribution and therefore rendered judgment allowing the appellee to recover jointly and severally against the appellant and Barger in the amount of $30,000 with the provision that each should pay one-half the judgment and should recover from the other any excess amount it might pay over its one-half part of the judgment. Subsequently this judgment was set aside and a new trial was ordered.

The truck involved in this accident was covered by a policy of insurance issued by the Motropolitan Casualty Insurance Company of New York. After the motion for a new trial was granted, Metropolitan made a separate settlement for itself and for Basden and Barger with the appellee, who was paid $20,000 upon his agreement to dismiss his cause of action against Basden and Barger. Accordingly, the appellee did dismiss his suit against them and thereafter the appellant dismissed, without prejudice, its cross action against them so that in the second trial the appellee, C. W. Wilson, was the only plaintiff and the appellant, Panhandle Gravel Company, Inc., was the sole defendant.

Again trial was to a jury which found that the appellant had loaded rocks and gravel above the sideboards of Barger's truck, that this was negligence and the proximate cause of the injuries sustained by the appellee. The jury assessed the appellee's damages at $50,000. This court, however, credited this amount with the $20,000 previously paid the appellee by Metropolitan and rendered judgment against the appellant for $30,000.

The appellant contends that the legal effect of the separate settlement was to release and discharge the appellant as well as to release and discharge Metropolitan, Basden and Barger. Before we can discuss the effect of the settlement, however, we must determine whether the appellant's liability is covered by Metropolitan's policy and whether the appellant is entitled to be indemnified by either Basden or Barger or both of them.

The appellant had contracted with D. E. Basden to haul gravel from the pits operated by the appellant to its washer located several miles from the pits. Under the terms of the contract Basden was an independent contractor and not appellants' employee. He used some of his trucks, which were driven by his employees as well as trucks owned by others. Among these was a truck owned and operated by Barger. The contract between Basden and the appellant contained this provision:

'The contractor (Basden) agrees to carry insurance at all times, indemnifying the Company (appellant) against any and all liabilities, judgments and/or costs growing out of injuries to himself, his employees or damage to the property of himself, of his employees, as well as claims, judgments, and all costs growing out of injuries to third party or property of third party, caused by the actions of Contractor of his employees.'

In compliance with this portion of the contract, Barger had a policy issued by the Metropolitan Casualty Insurance Company of New York which among other things defined 'insured' as follows:

'With respect to the insurance for bodily injury liability and for property damage liability, the unqualified word 'insured' includes the named insured and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission.' (Italics ours.)

The named insured is of course Fred E. Barger, whose occupation is hauling gravel.

The policy also provides the purposes for which the automobile is to be used: pleasure and business, terms which are defined as follows:

'(a) The term 'pleasure and business' is defined as personal, pleasure, family and business use. (b) The term 'commercial' is defined as use principally in the business occupation of the named insured * * * including occasional use for personal, pleasure, family and other business purposes. (c) Use of the automobile for the purposes stated includes the loading and unloading thereof.' (Italics ours.)

It is well settled that insurance contracts, in common with other contracts, are to be construed according to the sense and meaning of the terms used by the parties. If clear, unambiguous and free from fraud, accident, or mistake, it is conclusively presumed that the parties intended to give the terms used their plain, ordinary, and accepted meaning. Southern Travelers' Ass'n v. Wright, Tex.Com.App., 34 S.W.2d 823; The Imperial Fire Insurance Company of London, England v. County of Coos, 151 U.S. 452, 14 S.Ct. 379, 38 L.Ed. 231. Neither the record nor the policy suggests that the parties intended that its terms by used in any other than their generally accepted meanings. The appellee does not contend that the language used in the policy is ambiguous. The words to use, ordinarily mean to make use of; to convert to one's own service; to avail one-self of; to employ, as a plow, chair or book; to put into operation; to cause to function. The word use means the act of employment, the habitual practice or employment. According to the terms of the policy use of the truck includes loading and unloading. Appleman's Insurance Law and Practice, vol. 7, pp. 130-132. Loading the truck with gravel was a function delegated to the appellant. Therefore, when the appellant loaded the truck with Barger's permission, its liability was covered by the insuring clause of the policy. Undoubtedly the loading was with Barger's permission, since he was present. According to the testimony, Barger ran his truck to a spot previously designated by the appellant, and it was there loaded with gravel by appellant's employees using a drag bucket. In loading, appellant's employees would lower the bucket into the pit, fill it with gravel, and then dump the contents of the bucket into the truck. The bucket contained about 1 1/2 yards of gravel; Barger's truck normally would contain about 5 yards of gravel; so it would take a little more than 3 buckets to complete the load. While the loading was taking place, Barger was seated in the cab of the truck. In our opinion the loading was a use of the truck within the meaning of the policy, and the appellant is covered by Metropolitan's policy of insurance against any liability which might be imposed upon it as a result of loading or unloading the truck. American Employers' Ins. Co. v. Brock, Tex.Civ.App., 215 S.W.2d 370, writ ref. n. r. e.

We further believe that the appellant is entitled to be indemnified by Basden and Barger for whatever moneys it may be required to pay the appellee. As between joint tort-feasors, the common law of Texas has lond recognized the right of indemnity as existing in favor of one who satisfies an obligation on which he was liable but where the actual wrong or greater culpability rests on...