Warren v. Continental Cas. Co., 15342

Citation248 S.W.2d 315
Decision Date11 April 1952
Docket NumberNo. 15342,15342
PartiesWARREN v. CONTINENTAL CAS. CO.
CourtCourt of Appeals of Texas. Court of Civil Appeals of Texas

Woodul, Arterbury & Wren and Howard S. Hoover, all of Houston, for appellant.

Kemper & Wilson, of Houston, for appellee.

EARL P. HALL, Chief Justice.

Jesse C. Warren, the late husband of appellant Audie Warren, was untimely killed on September 14, 1950, when a Beechcraft airplane owned by his employer, Callery & Hurt, Inc., of Houston crashed near Lubbock.

Appellee Continental Casualty Company issued an insurance policy to Callery & Hurt, Inc. which was in force when the accident occurred and providing in part:

'That it will indemnify the employer for loss resulting from injury sustained by any officer, employee or guest of the employer (herein individually called insured person); to the extent herein provided.

"Injury' whereever used in this policy means bodily injury caused solely by an accident occurring while the policy is in force and resulting directly and independently of all other causes in loss covered by the policy, provided such injury is sustained by the insured person in consequence of riding as a passanger in, boarding, alighting from, making a parachute jump from (for the purpose of saving his life) or being struck by the twin engine six passenger-place Beechcraft Aircraft D 18 S, License NC 80496, owned by the employer, which aircraft at the time of the accident is flying with the consent of the Employer in or between the Continental United States, Mexico and Canada and is piloted by a person who holds a valid and current certificate of competency of a rating authorizing him to do so. * * *

'This policy does not cover any loss, fatal or non-fatal, caused or contributed to by * * * (d) Accident occurring while the aircraft herein described is carrying passengers for hire; * * *.'

Appellant, assignee of Callery & Hurt, Inc., sued appellee for the sum of $25,000 (limit of indemnity covered by each insured person under terms of the policy), which appellee refused to pay.

Appellee answered fully and urged a special exception to appellant's petition, asserting that since said petition alleged that Jesse C. Warren, an employee of Callery & Hurt, Inc., was piloting the aircraft when the fatal injury occurred, he was not in fact riding as a passenger and therefore was not covered.

The trial court sustained said special exception, and appellant brings this appeal upon three points. They include propositions to the effect that appellant's petition does state a cause of action because the word 'passenger' has no universal and inflexible meaning which will apply to all cases; that the deceased was covered by the policy in question, which indemnifies the employer from loss resulting from injuries sustained by any employee; and because the term 'employee pilot' is not, by the terms of the policy, expressly excepted therefrom.

The question raised by appellee's special exception is founded upon construction to be given the word 'passenger' as used in the 'injury clause of the policy.

Appellee relies upon the rule of construction in the case of Hall v. Mutual Benefit Health and Accident Association, Tex.Civ.App., 220 S.W.2d 934, to uphold the trial court's action in sustaining its special exception. The facts before us are somewhat different to those in the Hall case, supra. The court had before it there for construction the term 'powered aircraft' in a policy insuring against injuries caused by damage from powered aircraft when in truth and in fact the person injured was riding in a glider. The court held the word 'power,' to an average person, means mechanical power or equipment or contrivance with engine or motor.

Since the insurance policy before us for construction did not specifically exclude the pilot from coverage, we must therefore resort to fundamental rules of interpreting life insurance policies which have been handed down by our courts, such as, terms of the policy must be interpreted in the light of common sense; that the language of an...

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8 cases
  • United Services Life Insurance Company v. Delaney, 19531
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 18, 1964
    ...Court felt it was impelled to the construction which it adopted by the pronouncements of the Texas Courts in Warren v. Continental Casualty Co., Tex.Civ.App.1952, 248 S.W.2d 315, and Continental Casualty Co. v. Warren, 1953, 152 Tex. 164, 254 S.W.2d The appeal of Paul Revere Life Insurance ......
  • Kinnavy v. Traill, 5
    • United States
    • Supreme Court of Michigan
    • March 1, 1976
    ...of this state expressed in the legislation 7 and should be construed consistent with that policy. 1 See Warren v. Continental Casualty Co., 248 S.W.2d 315 (Tex.Civ.App., 1952).2 Randon House Dictionary of the English Language (unabridged ed., 1966), p. 1054.3 The Oxford Universal Dictionary......
  • United Am. Ins. Co. v. Pittillo, 3484
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • November 7, 1957
    ...191 S.W.2d 107 (writ ref.); United Service Automobile Association v. Miles, 139 Tex. 138, 161 S.W.2d 1048; Warren v. Continental Cas. Co., Tex.Civ.App., 248 S.W.2d 315. In Home Insurance Co., N. Y. v. Rose, supra [152 Tex. 222, 255 S.W.2d 863] cited by appellee, we find this statement of th......
  • Paul Revere Life Ins. Co. v. First National Bank in Dallas, 19604.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 31, 1966
    ...the Texas Supreme Court, Continental Casualty Co. v. Warren, 152 Tex. 164, 254 S.W.2d 762, affirming the Court of Civil Appeals of Texas, 248 S.W.2d 315, is unwarranted, illogical and insupportable in Texas law. It is important to remember that the decisions of the two United States Distric......
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