Southern Life & Health Ins. Co. v. Simon, 6846

• Decision Date: 02 February 1967
• Docket Number: No. 6846,6846
• Parties: SOUTHERN LIFE AND HEALTH INSURANCE COMPANY, Appellant, v. Merla Mae Chevis SIMON et al., Appellees. . Beaumont
• Court: Texas Court of Appeals

Page 765

411 S.W.2d 765

SOUTHERN LIFE AND HEALTH INSURANCE COMPANY, Appellant, v. Merla Mae Chevis SIMON et al., Appellees.

No. 6846.

Court of Civil Appeals of Texas.

Beaumont.

Feb. 2, 1967.

Rehearing Denied March 1, 1967.

Barnes & Barnes, Beaumont, for appellant.

George W. Brown, Jr., Beaumont, for appellees.

PARKER, Justice.

Southern Life and Health Insurance Company issued a 'Limited Accident Industrial Policy' to Austin Chevis (with his wife Merla Mae Chevis named as beneficiary). Chevis was accidentally killed. Merla Mae Chevis Simon (widow of the insured) and her husband, Joseph Simon, Jr., sued the insurance company to recover for the accidental death of the insured under the policy. The trial was before the court without a jury. Judgment was rendered for the full death indemnity provided by the policy, together with statutory penalty, interest and attorney's fees. The insurance company in its appeal does not contest the award of interest, damages, statutory penalty and attorney's fees if its primary liability under the policy is affirmed.

The policy itself provides:

'2. Or if the Insured shall by collision of or any accident to any railroad passenger car, passenger steamship, public omnibus, street railway car, public taxicab, public automoblie, public stage or public bus which is being driven or operated at the time by one regularly employed for that purpose, and inside of which the Insured is legally traveling; any private horse drawn vehicle or private motor driven automobile, inside of which the Insured is riding or driving, or any motor driven truck, inside of which the Insured is riding or driving, or if a street car motorman or street car conductor in addition to being covered as an individual by all the above provisions of the Policy he shall also be covered while actually operating a street car in the line of his employment when injured by collision of or accident to the street car which he is operating; or by any accident to any passenger-elevator, inside of which the Insured is riding as a passenger; provided, that in all cases referred to in this paragraph there shall be some external or visible injury on the said vehicle or elevator of the collision, or accident, provided that an injury to the tire on such vehicle shall not be considered an injury to the vehicle, and provided that this Policy does not cover Insured while riding in or on a motorcycle or in or on any side car or other attachment to a motorcycle--and provided that except as to railroad passenger cars, passenger steamships, street cars and elevators the collision or accident must occur on a public highway as heretofore defined.

'3. Should the Insured suffer any of the specific losses set forth below, the Company will pay the sum opposite such loss, and such payment shall be a full settlement under this Policy, which shall be delivered up for cancellation.

'FOR LOSS OF LIFE ..........TWO THOUSAND DOLLARS ($2,000.00)'

In the early morning of February 27, 1962, the longshoreman Austin Chevis was fatally injured on the 'SS Lena Luckenbach'. According to the Coast Guard Inspection Certificate the 'Luckenbach' is certified to carry 12 passengers. Her passenger accommodations consist of 6 cabins, each equipped with private bathroom facilities with 2 pull-down bunks that serve as seats in the daytime and make into beds at night. The ship has a passenger lounge. The passengers eat their meals with the officers in the saloon messroom. Some recreational facilities are provided for the passengers. When she was in the intercoastal run and up until May of 1961 she always carried from 4 to 12 passengers. When the accident occurred there were no passengers aboard but all of the ship's facilities for carrying passengers were intact and ready to receive passengers at that time. The charter party under which the vessel was then being operated had the right to carry passengers. The insurance company does not controvert that the 'Luckenbach' 'was equipped to be a passenger steamship' or that 'she had been a passenger steamship' but does assign as error the court's finding that she 'was a passenger steamship'. This contention of the insurance company is based upon the fact that at the time of this accident the steamship was operating only as a freighter. No Texas authorities are cited by the insurance company in support of its contention. In Continental Cas. Co. v. Warren, 152 Tex. 164, 254 S.W.2d 762 (1953), a policy was construed which provided indemnity against loss resulting from injury sustained in consequence of riding as a passenger in an airplane. The question before the court was whether the death of an airplane pilot in an accidental crash of the plane under his control was a passenger and covered by the policy. The court concluded that the word 'passenger' as used in the policy covered an occupant of the plane. The court said at p. 763:

'But for the fact that insurance policies are governed by the special rule of construction, which is a familiar part of our jurisprudence, we might, indeed, hold either that the interpretation against liability of the insurer should prevail or that, the policy being ambiguous, there is a fact issue as to what was intended. Yet the rule, of course, applies, and under it the insurer may not escape liability merely because his or its interpretation should appear to us a more likely reflection of the intent of the parties than the interpretation urged by the insured. The latter has to be no more than one which is not itself unreasonable. Lloyds Casualty Insurer v. McCrary, 149 Tex. 172, 179, 229 S.W.2d 605, 609. A related or subsidiary rule is 'that exceptions and words of limitation will be strictly construed against the insurer.' Providence Washington Ins. Co. v. Proffitt, 150 Tex. 207, 239 S.W.2d 379, 381. For all the particular considerations reasonably indicating that the pilot is not covered, there are yet others making it not unreasonable to say that he is, and that the insurer is therefore liable.'

and at p. 767:

'Since, therefore, the intent of the policy to exclude the pilot is not so certain as to make it wholly unreasonable to say that he was included, the judgment of the Court of Civil Appeals so holding should be affirmed and it is so ordered.'

The policy...