Pennell v. United Ins. Co.
| Decision Date | 24 October 1951 |
| Docket Number | No. A-3203,A-3203 |
| Citation | 150 Tex. 541,243 S.W.2d 572 |
| Parties | PENNELL v. UNITED INS. CO., Inc. |
| Court | Texas Supreme Court |
David H. Brown, Sherman, Robert L. Doss, Denison, for petitioner.
Freeman, Wolfe, Henderson & Bryant, Sherman, for respondent.
Petitioner Paul Pennell, who was accidentally injured while driving a jeep in the performance of his duties as a rural mail carrier, filed this suit against respondent, United Insurance Company, Inc., to recover indemnity of $200 per month, alleging that the injury caused inability to perform each and every duty pertaining to his occupation.
The company by the terms of the policy agreed to pay $100 per month for total loss of time caused by accidental injury and agreed further to pay double the monthly indemnity in the event of the insured's injury 'while driving or riding within any private passenger automobile exclusively of the pleasure car type'. The principal question in the case is as to the right of petitioner to recover the double indemnity.
The district court, after tital before a jury which found that the motor vehicle driven by petitioner was 'a private passenger automobile exclusively of the pleassure car type', rendered judgment for petitioner against respondent in the total sum of $4964, which included double indemnity, attorney's fees and penalty.
The Court of Civil Appeals, with Chief Justice Bond dissenting, reversed that judgment and rendered judgment that petitioner take nothing, holding that petitioner was not entitled to recover double indemnity and that respondent had paid petitioner the full amount of the indemnity at the rate of $100 per month that was due when the suit was filed. 238 S.W.2d 602, 604.
The Court of Civil Appeals, after reviewing the evidence and a number of authorities, expressed the conclusion that the jeep is 'an all-purpose car' and is 'neither exclusively a pleasure car type automobile nor exclusively a freight-carrying type, but a combination of all'; and held 'as a matter of law that the jeep involved here is not a private passenger automobile 'exclusively of the pleasure car type' and therefore not within the coverage of the double indemnity provision of the policy.'
The substance of petitioner's argument attacking the above quoted holding is that there is ambiguity in the policy's description of the automobile to which the double indemnity provision applies, and that the Court of Civil Appeals has resolved the ambiguity in favor of the insurance company, contrary to the construction that respondent placed on the policy and contrary to the jury's verdict.
In our opinion there is no ambiguity. The policy provides for double indemnity when injury is sustained by the insured 'while driving or riding within any private passenger automobile exclusively of the pleasure car type'. The words are simple. We do not find, as petitioner contends, that the word 'exclusively' causes the description to be ambiguous or that ambiguity arises from the 'placement' of that word. 'Exclusively' gives emphasis to the description as an automobile of the pleasure car type. We believe the words clearly mean that the double indemnity provision applies only to automobiles that are constructed and intended to be used exclusively for pleasure, and does not apply to automobiles constructed and intended to be used for freight carrying or agricultural or industrial purposes, and does not apply to automobiles constructed and intended to be used both for pleasure and for freight carrying or agricultural or industrial purposes.
The jeep in which petitioner was riding when injured is described by him in his testimony as 'just a Willys jeep, 4-wheel drive, cloth top', with two seats. By another witness it is referred to as a 1946 Willys Universal jeep.
Two witnesses testified as to the design and construction of jeeps and the purposes for which they are sold and intended to be used. Their testimony is undisputed. No issue of fact is raised. The testimony discloses many important differences between the jeep and the ordinary pleasure type automobile. The testimony and the photographs of the jeep in the record show that it is a rugged, uncouth vehicle without beauty of line or body, with no suggestion of comfort, and obviously intended for hard service rather than for pleasure. The jeep is not built like the ordinary passenger car. It is rougher and its seats are harder. The ordinary pleasure car has a two-wheel drive and the jeep has a four-wheel drive. This gives the jeep more power and it is better on roads that are not hard surfaced and better in the mud than the ordinary vehicle. The jeep is equipped with nondirectional tires on which the gripping ribs run straigth across the face of the tire and enable the vehicle to pull backward or forward. The seat on the jeep is thinner than the seat on the ordinary passenger car, and it has the minimum amount of springs. The jeep has six forward speeds and it has a low, low gear for heavy duty pulling. It has two standard drive shafts which operate front and rear differentials as standard equipment, and has also places for two other shafts front and rear. These are for the purpose of operating front end or rear end winches or mowers, 'or anything that requires power take-off to operate.' The ordinary passenger automobile does not have these. The tread of the jeep is narrower than the standard automobile tread. This gives more effective operation on muddy roads. The jeep is made to pull in the mud and to pull on grades and inclines. It is useful in mountain areas and will go where a wagon cannot follow. It has a distinct advantage for operation on icy roads, on rough roads or across country. The standard jeep is adapted to various industrial attachments as electric welders, compressors, ditch diggers, sprayers, fire equipment and pumps. Jeeps are sold to farmers, rural electrical associations, oil companies and other industrial users.
Petitioner used the jeep in the performance of his work as a rural mail carrier. He had an extra seat that he put in the jeep on Saturday evenings and Sundays so that he and his family could use it for convenience, pleasure, to go to church and for social engagements. He testified that he owned another automobile at the time he was carrying the mail, first, a Chevrolet and later an Oldsmobile, and that after his injury he sold the jeep to his substitute carrier, who used it in carrying the mail. There is testimony that jeeps can be used and often are used for various forms of pleasure, but this evidence does not change the fact, conclusively proved by the evidence which has been set out above, that jeeps are built and intended to be used and are used for other purposes than pleasure, as well as for pleasure, that the jeep is, as the Court of Civil Appeals expresses it, 'an all-purpose car'. We agree with that Court's holding that 'as a matter of law the jeep involved here is not a private passenger automobile 'exclusively of the pleasure car type.'"'
No case has been cited and we have found none that classifies the jeep except Union Pacific R. Co. v. United States, 91 F.Supp. 762, 765, 117 Ct.Cl. 534. The committees of the railroads had classified the jeep for rate purposes as a passenger vehicle rather than a freight vehicle, and the War Department had declined to pay on that basis. The suit was by the railroad company for the difference in the two rates on shipments over its lines. The court, after reviewing at length the history of the jeep and the use made of it during the war, held that the wartime jeep was primarily a passenger car and was correctly so classified for freight rate purposes. The opinion states that while the jeep was used for hauling and was 'in many respects an all-purpose car', there was evidence that it was used in the war from eighty to eighty-five per cent. for personnel and reconnaissance. The decision is not an authority that the jeep is a passenger automobile exclusively of the pleasure car type.
Spence v. Washington National Insurance Co., 320 Ill.App. 149, 50 N.E.2d 128, 130, construed the words of an accident insurance policy, 'private passenger type of automobile of the exclusively pleasure type', substantially the same as those of the double indemnity provision of the policy in the instant case, as not applying to an ordinary standard model half-ton Ford pick-up truck, although the plaintiff contended that the truck was as to the insured a passenger type automobile of the exclusively pleasure type because she had proved that the insured used the truck for transporting persons whom he picked up on the highway and at church, and for transporting his family and others to church and other places. The trial court's judgment for the plaintiff was reversed and judgment was rendered for the defendant.
Petitioner presents as closely in point a decision by the Supreme Court of Tennessee, Aetna Life Insurance Co. v. Bidwell, 241 S.W.2d 595, 596. The policy named an amount to be paid if the insured were accidentally killed 'while-riding in-a private passenger automobile of the pleasure car type', and the policy provided that the term 'automobile' should not 'include a motorcycle or any vehicle or mechanical device for aerial navigation'. The insured was killed while riding on a pleasure trip in a one-half ton pick-up truck. Judgment for the beneficiary was affirmed. The decision was placed in part on the exclusion clause above quoted, and it is to be observed that the policy described the automobile as one 'of the pleasure car type' and not as one 'exclusively of the pleasure car type', as here.
Decisions of the Iowa and the North Carolina courts hold that the same words of description as those construed in the Tennessee case discussed above, 'private passenger automobile of the pleasure car type' do not include a Ford pick-up truck or a Ford one and one-half ton truck, although the...
To continue reading
Request your trial
-
Bmg Direct Marketing, Inc. v. Peake
...back merely because the party at the time of payment was ignorant of or mistook the law as to his liability.'" Pennell v. United Ins. Co., 150 Tex. 541, 243 S.W.2d 572, 576 (1951) (quoting 40 Am.Jur. § 205 (1942)). The rule is a defense to claims asserting unjust enrichment; that is, when a......
-
Taylor v. Trevino
...was ignorant of or mistook the law as to his liability." BMG Direct Mktg., Inc. , 178 S.W.3d at 768 (quoting Pennell v. United Ins. Co. , 150 Tex. 541, 243 S.W.2d 572, 576 (1951) ). This rule, known as the "voluntary payment rule," is "a defense to claims asserting unjust enrichment; that i......
-
Texas South Rentals, Inc. v. Gomez
...the party at the time of payment was ignorant of or mistook the law as to his liability.'" Id. at 768 (quoting Pennell v. United Ins. Co., 150 Tex. 541, 243 S.W.2d 572, 576 (1951)). Peake argued that because BMG did not disclose how the late fees were calculated, he did not pay the late fee......
-
Patek v. Alfaro (In re Primera Energy, LLC)
...the law as to his liability.' " BMG Direct Mktg., Inc. v. Peake , 178 S.W.3d 763, 768 (Tex. 2005) (quoting Pennell v. United Ins. Co. , 150 Tex. 541, 243 S.W.2d 572, 576 (1951) ). As previously discussed, Plaintiffs are entitled to recovery under fraud. Accordingly, a finding that Plaintiff......