Panhandle Steel Products Co. v. Fidelity Union C. Co.

• Decision Date: 14 December 1929
• Docket Number: (No. 12232.)
• Citation: 23 S.W.2d 799
• Parties: PANHANDLE STEEL PRODUCTS CO. v. FIDELITY UNION CASUALTY CO.
• Court: Texas Court of Appeals

23 S.W.2d 799

PANHANDLE STEEL PRODUCTS CO. v. FIDELITY UNION CASUALTY CO.

(No. 12232.)

Court of Civil Appeals of Texas. Fort Worth.

December 14, 1929.

Appeal from District Court, Wichita County; P. A. Martin, Judge.

Action by the Panhandle Steel Products Company against the Fidelity Union Casualty Company. Judgment for defendant, and plaintiff appeals. Reversed and rendered.

Weeks, Morrow, Francis & Hankerson and R. C. Stanford, all of Wichita Falls, for appellant.

Collins & Houston, of Dallas, for appellee.

DUNKLIN, J.

This suit was instituted by the Panhandle Steel Products Company against the Fidelity Union Casualty Company to recover the amount claimed to be due on an insurance policy issued by the defendant in favor of the plaintiff, and plaintiff has appealed from a judgment denying it a recovery; the judgment being rendered upon a verdict peremptorily instructed by the trial judge. In the same suit plaintiff sought a recovery also against the Federal Surety Company for the same relief on another policy, which was issued by the latter company; but a nonsuit was taken by plaintiff as to that company, and in the following discussion of the case the term "defendant" is used to designate the Fidelity Union Casualty Company only.

At the time the defendant issued the policy in controversy, plaintiff was conducting a certain iron works business in the city of Wichita Falls, and was selling structural iron and steel to be used in other buildings, and in connection therewith it employed men and trucks and trailers to haul and deliver steel to be used in such structures. While the policy was in force, the plaintiff sold to Taylor Bros., doing business in Wichita Falls, some channel iron and other material, and agreed to deliver it at the purchaser's plant. In order to make the delivery, the iron was loaded onto one of plaintiff's trucks, which was then driven to the place of delivery by Lewis, one of plaintiff's employees, who was placed in charge of the truck for that purpose. The channel iron to be so delivered was a piece 18 feet long and 8 or 10 inches wide, with a flange of about 2 inches. There was no way to reach the rear of the building in which the load was to be delivered, and therefore the delivery had to be at the front of the building, and in order to make the delivery the truck was backed up to the curb of the street in front of the building, and the iron was then unloaded from the truck and carried into the building; and while being thus unloaded, and while the beam of iron was being moved across the sidewalk into the building, and when about one-half of the beam was off the truck, Miss Ida Godley, a citizen of Wichita Falls, happened to pass along the sidewalk, and while so doing one point of the channel iron beam struck her in the side and injured her.

Miss Godley then instituted suit against the plaintiff in this case for the injuries so sustained by her, which suit was compromised and settled for a consideration of $1,500, which was paid by the plaintiff in this case, and the settlement was fair and reasonable. The amount so paid, together with certain incidental expenses incurred by the plaintiff in this case, such as fees incurred to secure the services of a physician, an attorney, and the witness Lewis, driver of the truck, who was attending school in another county, and whose expenses had to be paid to secure his personal attendance in court, was the amount which plaintiff sought to recover.

When the truck was backed up to the curb in front of the building, occupied by Taylor Bros., who had purchased the material with which the truck was loaded, Lewis, the driver of the truck, went into the building, and inquired of Taylor Bros. where they wanted the materials delivered, and was instructed by them to place it inside the building. Lewis, then with the assistance of one or two of Taylor Bros.' employees proceeded to take the material out of the truck, and carry it across the sidewalk into the building. Several pieces were first unloaded and taken into the building before the channel iron was moved. The plaintiff owned and employed trucks for the purpose of delivering such material to purchasers thereof.

The insurance policy, held by the plaintiff, among others, contained these provisions:

"In consideration of the premium herein provided, it is agreed by the company and the named assured that this policy shall cover all automobiles, trucks, tractors and trailers, owned or operated by the assured at any time during the term of this policy, and that such automobiles, trucks, tractors, and trailers will be used for the purposes stated in this policy, and that the assured accepts and is bound by the condition herein expressed respecting records, reports, premium adjustments, and future premium payments hereinafter contained.

"The earned premium for this insurance shall be $19.00 for each automobile, truck, tractor, or trailer, owned or operated by the assured, being $12.00 for the public liability, coverage and $7.00 for the property damage coverage. It is understood and agreed that the quarterly premium for each automobile, truck, tractor, and trailer covered under this policy shall be one-fourth of the annual premium expressed above, and shall apply to each of the automobiles, trucks, tractors, and trailers as shown by the quarterly reports herein provided.

"7. The automobiles covered by this policy and the premium charges therefor are as follows, it being understood and agreed that the company will not be liable under any of the first three of the insuring agreement except that agreement or those agreements for which a specific premium is provided in the following table.

"8. The automobiles are and will be used for the following purposes only: Business and pleasure."

Following is the insuring agreement, embodied in the policy upon which the plaintiff's suit is based:

"To insure the assured against loss from the liability imposed by law upon the assured for damages, on account of bodily injuries, including death at any time resulting therefrom whether instantaneous or not, accidentally suffered, or alleged to have been suffered, by any person or persons (except as provided in condition B hereof) as a result of the ownership, maintenance, or use, for the purposes described in declaration 8 of any automobile described in declaration 7."

Condition B, referred to in the last-quoted provision, is foreign to any issue in the case and therefore will not be quoted. It was agreed on the trial that notice to the defendant and proof of loss were all made by the plaintiff in accordance with the requirements of the policy.

Following proof of the facts recited above and the introduction of the policy issued by the defendant company, the plaintiff then rested its case; and the only evidence offered by the defendant in rebuttal was allegations in plaintiff's original petition; those allegations being offered as admissions against interest. The abandoned pleading, which was plaintiff's original petition filed in the suit, showed that plaintiff sued both the Fidelity Union Casualty Company, and the Federal Surety Company, for the same relief sought in the amended petition on which the case went to trial; the nonsuit as to the Federal Surety Company having been taken before the filing of that pleading. The portion of that abandoned petition, which was offered in evidence by the defendant, consisted of allegations to the effect that the injuries suffered by Miss Godley were covered by the policy then held by the plaintiff in the Federal Surety Company. Thereupon the plaintiff introduced in evidence the Federal Surety Company's policy and closed its case.

The first question for our determination is whether or not the injury suffered by Miss Godley was the result of the "ownership, maintenance, or use" of the truck for the purposes of plaintiff's business, within the meaning of the policy issued by the defendant. We do not believe that it can be said that the injury resulted from the mere ownership of the truck, but we have reached the conclusion that the injury was the result of its use, irrespective of whether or not the word "maintenance" should be construed as having substantially the same meaning as the word "use," or referring only to the condition of repair in which the trucks were kept.

The language so used in the policy is plain and unambiguous, and the only question for determination is involved in its logical application to the contractual clause of the policy, when read in the light of the surrounding circumstances leading to its procurement and issuance. The defendant issued the policy of insurance with full knowledge of the character of plaintiff's business, and of the use that would be made of its trucks in hauling iron and steel for delivery to plaintiff's customers.

The delivery to the purchaser of the material purchased was the main purpose of the haul, and the loading and unloading were as necessary to accomplish that purpose as was the driving of the truck from plaintiff's place of business to the point of delivery. Not only was the unloading of the material at Taylor Bros.' place of business necessary to consummate the sale made to them, but it was also necessary for further use of the truck by the plaintiff. Hence the unloading of the truck was a necessary incident to its use, as much so as was the driving of it back to the plaintiff's place of business for another haul after being unloaded, or the driving of it to plaintiff's place of business for the purpose of being loaded. It will be noted, further, that the language used in the liability clause...