Royal Ins. Co. v. Texas & G. Ry. Co.

• Decision Date: 03 December 1908
• Citation: 115 S.W. 117
• Parties: ROYAL INS. CO. v. TEXAS & G. RY. CO.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

115 S.W. 117

ROYAL INS. CO. v. TEXAS & G. RY. CO.^†

Court of Civil Appeals of Texas.

December 3, 1908.

Rehearing Denied January 14, 1909.

Appeal from District Court, Gregg County; W. C. Buford, Judge.

Action by the Texas & Gulf Railway Company against the Royal Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Turner & Campbell and Cockrell & Gray, for appellant. Young & Stinschomb, for appellee.

HODGES, J.

This is an appeal from a judgment rendered in favor of the appellee railway company against the appellant in a suit on a policy of insurance. The petition alleges the issuance of a policy in favor of the appellee by the appellant, in which the latter undertook to, and did, insure the former against all loss or damage by fire to an amount not exceeding $10,000 by any one fire, for a term of one year from the date of the policy; and that the insurance covered cotton in bales on or in depots, platforms, and on the ground adjacent to the platforms, and in transit, while in the custody of the assured as a common carrier. The insurance covered the legal liability of the insured, not exceeding the cash market value of the cotton damaged or destroyed on the day of the fire. Appellee then further alleges the destruction of the cotton which it claimed was covered by the policy, aggregating the value of $2,711.74. The appellant answered by general and special exceptions, by general denial, and specially pleaded that by the terms of the contract of insurance expressed in the typewritten part of the policy upon which the suit was based it is expressly provided as follows: "That it is understood and agreed that cotton in open cars is not covered by this policy." It denies that it contracted with the appellee to insure it against loss of cotton by fire while such cotton was in open cars. It further alleges that the cotton destroyed by fire, which formed the basis of this suit, was burned, if at all, while loaded in an open car on the appellee's track, and was therefore not covered by the policy of insurance. It also avers that the rate of insurance at which this policy was written was 4 cents per bale, and that at the time the policy was issued the usual and prevailing rate, and that used by the appellant for cotton in open cars, was 20 cents per bale. To this the appellee replied by supplemental petition, alleging, among other things, that the clause relied on by the appellant as exempting it from liability for cotton burned while in open cars was in conflict with the insuring clauses of the policy, which insure "cotton in bales on or in depots, platforms and on the ground adjacent to that platform, and in transit, while in the custody of the assured as common carriers," and which say that this insurance "covers the legal liability of the assured as a common carrier, not exceeding the actual cash market value on date of fire, which cash market value shall in no event be greater than would then and there cost to replace the property damaged or destroyed with property of the same kind and quality, and attaches from the time of receipt of the cotton by the assured, and terminates at its delivery to consignee or succeeding carrier." It is insisted that by reason of this conflict the insuring clauses should govern, inasmuch as the cotton was destroyed by fire while in the charge and custody of the plaintiff as a common carrier.

In the fourth subdivision of its supplemental petition the appellee pleads as follows: "Further replying specially to the defendant's answer, the plaintiff says that the cotton was loaded at the plaintiff's Timpson depot at about 6 o'clock a. m. of October 28, 1905, in about 30 minutes time, on a flat car, on which it was destroyed, for the purpose of making platform room for other cotton, but not to be transported until about 12 hours, and possibly 24 hours, thereafter, at one of which times it was to be transferred to the track of the Houston East & West Texas Railway Company, at Timpson, necessitating a movement of about 400 feet, to be pushed about half the distance and pulled the other half. The car was placed on a spur track by the side of and adjacent to the depot and platform of the plaintiff at its Timpson depot and station, and within one foot of its said platform and depot, with the intention of having the same remain there for about 12 hours or more as a part of its said depot and platform, and an appliance thereto, and that, as a part of said depot and platform, it was loaded with the cotton set out in the plaintiff's first amended original petition, and there was no intention on the part of the plaintiff of having the same moved or transferred until about 6 o'clock p. m. of that day, or about 7 a. m. of the next day, and that during the day of October 28, 1905, and at the time the said cotton was destroyed, which was about 12 o'clock noon of that day, the said car was being used as a part of the plaintiff's Timpson depot, appliance thereto, platform, and ground adjacent to its platform, and was a part of its depot, platform, ground adjacent to its platform, and an appliance to its said depot, and the cotton being destroyed while thereon was covered by the policy. The track on which the said car was standing was a spur track extending out from the main line to the depot and platform, and stopping at said depot, and used only for the purpose of placing cars thereon to be loaded from the depot or platform and to be unloaded onto the depot or platform, and the said track was used for no other purpose and has never been used for any other purpose and the said track is never and has never been used for switching purposes or other purposes than those just named, and that the car on which the cotton was loaded was the car nearest the end of the spur with other cars between it and the main track, and was so situated the entire day of October 28, 1905, until it and the cotton loaded thereon were destroyed by fire, in the manner set out in the plaintiff's first amended original petition, and, had the said car and cotton not taken fire, they would have remained at said place as a part of the plaintiff's depot until 6 o'clock p. m. of the day of the fire or 7 o'clock a. m. of the next day. The cotton could have been loaded on the car in about 30 minutes, at any time of the day, and the plaintiff's agent at Timpson would not have loaded said cotton earlier than 5 o'clock p. m. of October 28, 1905, but for the reason that other cotton was ready to be delivered to the plaintiff as a common carrier, on its depot and platform, and the said agent loaded said car, at the time it was loaded, for the purpose of using it, from the time he began loading it until it should be transferred to the track of the other railway company, as a part of the plaintiff's depot, appliance thereto, platform, and ground adjacent thereto, and that it was so used and being so used at the time the cotton took fire and was destroyed. At the time the cotton was loaded on the car there was no locomotive engine in the plaintiff's yard at Timpson, and none on the track on which the car was situated, nor was it contemplated by the plaintiff's agent that any such engine would operate near the said car or go on the track therewith until 6 o'clock p. m. of that day, or about 7 o'clock a. m. of the next day, nor did any such engine go onto the track or operate near said car. The car had not been in any way attached to a locomotive from the time the loading of it began up to and after the cotton was destroyed. The cotton, being loaded on a car used as a part of the plaintiff's depot, appliance, platform, and ground adjacent to its platform, and not being moved by a locomotive at that time, was...