Simons v. Niagara Fire Ins. Co., 16690

• Citation: 398 S.W.2d 833
• Decision Date: 21 January 1966
• Docket Number: No. 16690,16690
• Parties: Bob SIMONS, d/b/a Bob Simons Grain Company, Appellant, v. NIAGARA FIRE INSURANCE COMPANY, Appellee.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 833

398 S.W.2d 833

Bob SIMONS, d/b/a Bob Simons Grain Company, Appellant, v. NIAGARA FIRE INSURANCE COMPANY, Appellee.

No. 16690.

Court of Civil Appeals of Texas, Fort Worth.

Jan. 21, 1966.

Rehearing Denied Feb. 18, 1966.

Herrick & Tillman, and John W. Herrick, Fort Worth, for appellant.

Sanders & Nolen, and Fleming A. Waters, Dallas, for appellee.

LANGDON, Justice.

This case grows out of a claim on an insurance policy which provided coverage against losses of or damage to property of the appellant while in transit. On March 8, 1962, the appellant purchased from the Commodity Credit Corporation a quantity of grain which was stored at the Spacek Grain Company, Elevator at Ralls, Texas, and the Lorenzo Grain Co-op Elevators at Lorenzo, Texas. On approximately March 20, 1962, the appellant was informed that he no longer owned any grain at either elevator. An investigation revealed that on March 13, 1962, two loads of appellant's grain were loaded at the Lorenzo Grain Co-op and on March 15, 1962, and March 17, 1962, two more loads were loaded at the Spacek Grain Elevators. The grain was loaded on the trucks of the Wichita Trucking Co. and receipts were given by its drivers Messrs. Crane and Alvaredo. Appellant had given no one the authority to take his grain from the elevator. Subsequent to being removed from the elevator the whereabouts of the grain has remained unknown to the appellant. The case was tried before the court without a jury. The court in effect found that the losses sustained were not 'in transit' as that term was contemplated by the parties to the insurance contract and therefore the losses sustained whether by theft or otherwise were not insured losses within the coverage provided by the insurance policy.

We are of the opinion that the court properly construed the contract to cover losses only while the goods were in transit and the court properly found that these goods were not in transit when the losses occurred. The contract in question is plain and unambiguous. The grain was in storage in the elevators at Ralls and Lorenzo when it was purchased by the appellant. The appellant did not at any time authorize the removal of the grain from the elevators or arrange for its loading and delivery elsewhere. The grain was in storage when unauthorized persons took it.

'An inland transit policy, insuring the plaintiff on merchandise while loaded for shipment on, and in transit in or on, described motor trucks, was held in Mayflower Dairy Products, Inc. v. Fidelity Phenix Fire Ins. Co. (1938) 170 Misc. 2, 9 N.Y.S.2d 892, not to cover the theft of merchandise from two trucks kept loaded on the premises overnight, one of which was removed from the premises by the thief, and the other pilfered on the premises. If appeared that the plaintiff's usual practice was to keep motor trucks loaded at all times,...