Providence Washington Ins. Co. v. Proffitt
| Decision Date | 25 April 1951 |
| Docket Number | No. A-3003,A-3003 |
| Citation | 150 Tex. 207,239 S.W.2d 379 |
| Parties | PROVIDENCE WASHINGTON INS. CO. v. PROFFITT et al. |
| Court | Texas Supreme Court |
Kerr, Gayer & Sutton, San Angelo, for petitioner.
Clyde Vinson, San Angelo, for respondents.
O. C. Proffitt sued Providence Washington Insurance Company to recover loss or damage to his automobile. The San Angelo National Bank, San Angelo, Texas, intervened, asserting a claim as mortgagee to a portion of the recovery, if any, under a loss-payable clause attached to the policy. Trial was to the court and judgment was for the defendant. No findings of fact or conclusions of law were filed. The Court of Civil Appeals reversed the judgment of the trial court and rendered judgment for Proffitt and Bank. 234 S.W.2d 894.
The policy of insurance is an 'Automobile Policy, Physical Damage Form' and contains a number of coverages. The coverage purchased by Proffitt and under which recovery is sought is Coverage B-1 and reads as follws:
'Coverage B-1 -- Collision or Upset
'Loss of or damage to the automobile caused by collision of the automobile with another object or by upset of the automobile.'
In his petition (adopted by intervener) plaintiff alleged that his 'automobile was totally destroyed or damaged by floodwaters of the Concho River' when his automobile was driven upon a causeway across said river 'and said automobile hit said water and causeway and was upset by said floodwaters of said river.' He further alleged 'that said waters upset said automobile on said causeway, washing said automobile off said causeway and said automobile was thereby and as a result of such collision or upset by said water rendered useless and worthless.'
The respondent's son, Eugene Proffitt, was the only witness to testify on the trial of the case. His testimony may be summarized as follows: On July 5, 1948 young Profitt, traveling in an easterly direction, drove the automobile upon a low-water causeway across the Concho River at First Street in the City of San Angelo, Texas. Normally the river flows over the causeway at a depth of six or seven inches but the water was deeper on this occasion, the river being in some stage of flood. The automobile hit the water with a 'splash' and came to a halt in an inclining position with the wheels on the right side off of the south side of the causeway. At this point the water on the left or north side was up to the running board of the automobile and the water on the right or south side was up to the door handle, but so far as the evidence reflects no damage to the car had been done. The driver was unable to extricate the automobile and the force of the floodwaters of the river washed it from the causeway into the river and turned it 'half over'. An effort to pull the automobile out with a wrecker failed and the automobile was damaged beyond repair by the water.
It was the view of the Court of Civil Appeals that when the automobile hit the water on the causeway and came to rest with the right wheels off of the causeway there was a collision and an upset within the meaning of the insuring clause of the policy which collision and upset was the proximate cause of the loss. Petitioner does not seem to question the conclusion of the Court of Civil Appeals that the events just described constituted a collision and an upset; it does question, however, that such collision and upset was the proximate cause of the ensuing damage to the automobile. It is the contention of petitioner that the evidence is sufficient to support an implied finding by the trial court that the causal connection between the events described and the loss of the car was broken by a new and independent cause-the floodwaters-which itself became the direct and proximate cause of the loss and rendered the original collision and upset but a remote cause of the loss. Petitioner then reasons that under the policy definition of 'loss caused by collision or upset' found in Coverage A in the policy there is no liability.
Coverage A reads as follows:
'Coverage A -- Comprehensive -- Loss or Damage of the Automobile, Except by Collision.
'Any loss of or damage to the automobile except loss caused by collision of the automobile with another object or by upset of the automobile or by collision of the automobile with a vehicle to which it is attached.
Breakage of glass and loss caused by missiles, falling objects, fire, theft, explosion, earthquake, windstorm, hail, water, flood, vandalism, riot or civil commotion shall not be deemed loss caused by collision or upset.'
Respondent had not paid for and did not have Coverage A but we may examine this provision for the purpose of 'determining the respective obligations and rights of the parties to the policy.' Glens Falls Ins. Co. v. McCown, Tex.Sup., 236 S.W.2d 108, 111. An analysis of the language of Coverage A and B-1 makes it unnecessary to decide whether the evidence was such as to support an implied finding by the trial court that the causal connection between the original collision and upset and the damage to the car was broken by the intervention of a new and independent cause. We have concluded that even though the automobile had come to rest after its original collision with the water only to be thereafter washed from the causeway by the force of floodwaters, petitioner is yet liable under the terms of the policy.
The provision of Coverage A that 'Breakage of glass and loss caused by missiles, falling objects, fire, theft, explosion, earthquake, windstorm, hail, water, flood, vandalism, riot or civil commotion shall not be deemed loss caused by collision or upset' cannot be used to defeat a recovery under Coverage B-1. The obvious purpose of this provision was to enlarge the liability of petitioner under Coverage A and was not to restrict the liability of petitioner under Coverage B-1. To those who paid for Coverage A petitioner obligated itself to pay for all loss or damage to the automobile except loss or damage caused by collision or upset. By the quoted language it then removed any possibility of defeating recovery for loss or damage resulting from the causes named, including water and flood. If petitioner had intended the language used in the last sentence of Coverage A (enlarging its liability under that coverage) to be used also to restrict its liability under Coverage B-1, the same language could have been written into Coverage B-1 as a limitation of liability. It is a settled rule in this state that policies of insurance will be interpreted and construed liberally in favor of the insured and strictly against the insurer. United Service Automobile Ass'n v. Miles, 139 Tex. 138, 161 S.W.2d 1048; Wood v. Southern Casualty Co., Tex.Civ.App., 270 S.W. 1055 (writ dism.); 24 Tex.Jur. p. 705, sec. 29. It is also well settled that exceptions and words of limitation will be strictly construed against the insurer. American Fidelity & Casualty Co., Inc. v. Williams, Tex.Civ.App., 34 S.W.2d 396, 402 (writ dism.); Norwood v.Washington Fidelity Nat. Ins. Co., Tex.Civ.App., 16 S.W.2d 842 (no writ history); 24 Tex.Jur. p. 704, sec. 28. We will certainly not write a limitation of liability into a policy where none exists.
Having concluded that the language of Coverage A does not limit or restrict the liability of petitioner under Coverage B-1, we are free to determine the rights of the parties as those rights exist and are expressed alone in the language of Coverage B-1. The question to be answered is whether, the automobile having come to rest without damage, the damage thereafter accruing was 'caused by collision of the automobile with another object or upset of the automobile'. Here again we are guided by the rule of liberal construction in favor of the insured.
We hold that the force of the floodwaters against the automobile was a collision within the meaning of the language of Coverage B-1 and that this collision was the proximate cause of the damage to the automobile. Our holding is not without basis in respectable authority. That water is an object with which an automobile may have a collision within the meaning of an insurance policy has been held in the following cases: Harris v. American Casualty Co., 83 N.J.L. 641, 85 A. 194, 44 L.R.A.,N.S., 70; Ringo v. Automobile Ins. Co. of Hartford, Conn., 143 Or. 420, 22 P.2d 887; Long v. Royal Insurance Company, 180 Wash. 360, 40 P.2d 132, 133, 105 A.L.R. 1423. See also 45 C.J.S., Insurance, § 797, p. 837. It has been held also that a...
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