Royal Indem. Co. v. Marshall

• Decision Date: 15 April 1964
• Docket Number: No. 11174,11174
• Citation: 378 S.W.2d 364
• Parties: ROYAL INDEMNITY COMPANY, Appellant, v. Bob MARSHALL, Jr., Appellee.
• Court: Texas Court of Appeals

Page 364

378 S.W.2d 364

ROYAL INDEMNITY COMPANY, Appellant, v. Bob MARSHALL, Jr., Appellee.

No. 11174.

Court of Civil Appeals of Texas, Austin.

April 15, 1964.

Rehearing Denied May 6, 1964.

House, Mercer, House & Brock, Franklin D. Houser, San Antonio, for appellant.

E. B. Fuller, Arthur Mitchell, Austin, for appellee.

HUGHES, Justice.

This suit was brought by Bob Marshall, Jr., to recover damages caused by fire to three automobiles owned by him, such loss allegedly being covered by a fire insurance policy issued to him by appellant, Royal Indemnity Company.

The fire occurred on January 15, 1963. The burned building in which appellee's cars were housed was located at 508 South Congress Street in Austin, Texas. This building was not named in the insurance policy. It was not owned or controlled by appellee. Two of the damaged cars had been at this address for more than seven days prior to the fire.

The policy sued on was issued to appellee as an 'Automobile Dealer,' whose address was stated to be 612 N. Lamar, Austin, Texas. The policy covered automobiles consigned to or owned by appellee and held for sale or used in his business as an automobile dealer. The policy contained these provisions:

'Named Locations--The insured represents that the specific locations named herein are all of the locations or spaces within locations owned. rented or controlled wholly or in part and used by the insured as places of display or storage of automobiles on the inception date of the policy. The company's limit of liability for each such location shall be as stated herein.

                                NAMED LOCATIONS
                -----------------------------------------------
                                                       Annual
                               Show Main     Annual  Theft Rate
                 Limit of   Sales Location    Fire    (except
                Liability        First        Rate    Blanket)
                -----------------------------------------------
                $10,000.00  at 612 N. Lamar   .45
                -----------------------------------------------
                $           at
                -----------------------------------------------
                $           at
                -----------------------------------------------
                $           at
                -----------------------------------------------
                $           at
                -----------------------------------------------
                $           at
                -----------------------------------------------
                

The limit of liability stated for the main sales location shall be inclusive of the limit of liability for automobiles designated in paragraph 1, 'Property Covered,' which are made available for the use of the owner, officers or employees and privately stored at other than the named locations, and the actual cash value of all such automobiles shall be included in the nonthly statements of values reported for the main sales location.

UNNAMED LOCATIONS----

(a) The insured shall report to the company any other location owned, rented or controlled wholly or in part by him which he commences to use as a place of display or storage of automobiles. Prior to receiving such report, the company shall not be liable for loss occurring after the first 45 days following the commencement of such use and the company's limit of liability at any such location shall not exceed

$_____.

(b) As respects automobiles at locations other than those named herein or in another policy affording the insured insurance against loss covered hereunder or described in paragraph (a) above, the company shall not be liable for loss occurring more than 7 days after liability could first attach as respects any one location and the company's limit of liability at all such other locations shall not exceed

$_____.'

Shortly after issuance of the above described policy, appellee sold his business located at 612 N. Lamar, that is, he sold his lease and improvements but retained his cars. He moved his cars to his father's place of business at West Avenue and Fifth Street and thereafter conducted his car business from that location.

Mr. John Schuler, an insurance agent, who sold the policy in suit to appellee testified that he observed that appellee's place of business on N. Lamar was being closed and he, after conferring with appellee, endorsed a change of address on the policy from N. Lamar to West and Fifth.

The circumstances under which the damaged cars happened to be at the South Congress address when the fire occurred were testified to by appellee, Mr. Roy Ragland and Mr. Bob Marshall, Sr.

Mr. Marshall, Sr. acquired the building on S. Congress and used it in connection with his car business located at West and Fifth. The building was used for the purpose of repairing and painting cars and preparing them for sale. The trade calls this a 'make ready' process. Mr. Ragland was employed by Mr. Marshall, Sr., working for him on a straight salary, full time basis. He was a 'body man.' When Mr. Marshall acquired the S. Congress building, Mr. Ragland did his work for Mr. Marshall at that location. Mr. Ragland also did 'make ready' work for appellee on cars owned by him. This work was done at the S. Congress building after its acquisition by Mr. Marshall, Sr. It was done after 'working hours.' Mr. Marshall, Sr. knew that Mr. Ragland worked on appellee's cars at the S. Congress building after his day's work for him was over. He had no objection to this arrangement.

Appellee's three cars damaged by fire at the S. Congress building were there, at the time, to be 'made ready' by Mr. Ragland.

Trial was to a jury which made these findings: (a) The burned cars were not, as contemplated in the policy of insurance sued on, in storage at 508 S. Congress Avenue (b) The cars were not so on display at such address (c) damages in the sum of $3325.00.

Appellant has twenty points of error the first being that the Trial Court erred in overruling its motion for an instructed verdict based on the ground that more than seven days had elapsed from the date that liability could have attached to the date of the fire loss at an unnamed location. It is appellant's construction of the policy that it is not liable for any loss occurring at 508 S. Congress, an address not named in the policy, which loss occurred more than seven days after the damaged cars were carried there. We do not agree with this construction of the policy. The provisions of the policy upon which this point turns have been copied above. Paragraph (a) under 'Unnamed Locations' does not apply because the undisputed evidence is that appellee did not own, rent or control, wholly or in part, the premises at 508 S. Congress where the loss occurred. Paragraph (b) does not apply because the building at 508 S. Congress, where the loss occurred, was not a 'location' as that term is used in the policy.

There is evidence that the cars belonging to appellee which were damaged in the fire at 508 S. Congress were not in such place for storage or display but that they were housed there solely for the purpose of making them ready for sale.

'Locations,' as used in the policy, refer to locations 'used by the insured as places of display or storage of automobiles.' (Policy provisions, supra.) Also it is to be noted that the insured is directed to 'Show Main Sales Location First.'

There are only two purposes for a 'location' disclosed in the policy, display and storage. Wherever the word location is found in the policy, we construe it as referring to a place where the insured stored or displayed his automobiles. ¹ It follows that 508 S. Congress was not, as a matter of law, a 'location.'

Appellant's Motion for an Instructed Verdict was properly denied.

Appellant next jointly briefs points eleven through thirteen which complain of the failure of the Trial Court to submit to the jury three requested special issues which asked the jury to find whether or not each of the damaged cars had been at the 508 S. Congress address for more than seven days prior to the fire.

Under appellant's theory of liability if any oen of the cars was at the unnamed South Congress address for more than seven days before the fire, then it is exonerated from liability under paragraph (b) of the policy herein quoted. As previously indicated, we do not agree with construction of the policy. We are of the opinion, however, that the evidence is undisputed that two of the cars had been at 508 S. Congress more than seven days prior to the fire. It was, therefore, unnecessary to submit these issues.

Points four and five are jointly briefed. They complain of the submission of Special Issue No. 1 on the ground that it submits only a question of law. The issue reads: 'Do you find from a preponderance of the evidence that the automobiles in question were placed at 508 South Congress in Travis County, Texas, before the fire in question for storage as contemplated by the policy of insurance?'

The general rule is that it is the province of the judge to determine the legal effect of unambiguous written instruments, but this rule is subject to the qualification that where it becomes necessary to...