Glens Falls Insurance v. McCown

236 S.W.2d 108, 149 Tex. 587, 1951 Tex. LEXIS 462
CourtTexas Supreme Court
DecidedJanuary 10, 1951
DocketA-2718
StatusPublished
Cited by19 cases

This text of 236 S.W.2d 108 (Glens Falls Insurance v. McCown) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Glens Falls Insurance v. McCown, 236 S.W.2d 108, 149 Tex. 587, 1951 Tex. LEXIS 462 (Tex. 1951).

Opinions

Mr. Justice Brewster

delivered the opinion of the Court.

This is a suit by Fred W. McGown, respondent, against Glens Falls Insurance Company, petitioner, to recover on an insurance policy for water damage to seven automobiles. A trial court judgment for respondent was affirmed by the Court of Civil Appeals. 228 S. W. 2d 949.

As a dealer in automobiles, respondent bought from petitioner a policy which insured him against “direct and accidental loss of or damage to the automobile, hereinafter called loss, caused by windstorm, hail, earthquake, explosion, external discharge or leakage of water except loss resulting from rain, snow or sleet.”

Respondent kept his automobiles on a lot in a lowland section of Fort Worth. In May, 1949, an unprecedented rain fell over much of the watershed of the Trinity River; the Trinity left its banks, engulfed the levees along its banks and overflowed a large part of the city, including respondent’s lot. The seven automobiles were submerged to such depth that the water covered their speedometers, panel boards, motors, transmissions and differentials. Respondent claims the resulting damage was caused by an “external discharge or leakage of water” under the policy language above quoted.

The policy showed 8 coverages designated as A, B-l, B-2, C, D, E, F, and G. Preceding these coverages, under the heading of “Declarations”, was “Item 3”, which provided: “The insurance afforded is only with respect to such and so many of the following coverages as are indicated by specific premium charge or charges. The limit of the company’s liability against each such coverage shall be as stated herein, subject to all the terms of this policy having reference thereto.” Respondent’s policy showed premium charges only on Coverages B-l, C, D and E. His claim is under Coverage E, the material parts of which are quoted above.

Coverage F, as to which no premium charge was made in respondent’s policy, was designated as “Combined Additional Coverage”' and read as follows: “To pay for direct and accidental loss of or damage to the automobile, hereinafter called [590]*590loss, caused by windstorm, hail, earthquake, explosion, riot or civil commotion, or the forced landing or falling of any aircraft or of its parts or equipment, flood or rising waters, external discharge or leakage of water except loss resulting from rain, snow or sleet.” (Italics ours.)

As relating to the issue at bar, the language of Coverage E is identical with that of Coverage F, except that the latter includes the phrase “flood or rising waters.”

Petitioner contends that the water which damaged respondent’s automobiles was flood water; that since Coverage E, which was accepted and paid for, did not insure against flood waters whereas Coverage F, which was not taken and paid for, did insure against flood waters, respondent’s policy expressly failed to cover the damages sued for, and that respondent had notice of that fact when he received the policy.

Respondent counters that since Coverage F was not taken and paid for, it is no part of the policy and cannot be considered in construing Coverage E relating to external discharge or leakage of water.

In regard to automobile insurance, Section 5, of Art. 4682b, Vern. Ann. Civ. Stat., directs that “the Commissioner shall prescribe policy forms for each kind of insurance uniform in all respects except as necessitated by the different plans on which the various kinds of insurers operate, and no insurer shall thereafter use any other form in writing automobile insurance in this State.” (Italics ours.)

A member of the agency which issued respondent’s policy testified as a witness for petitioner: “The policies are all what we call OK’d by the Board of Insurance Commissioners at Austin and all companies use the same standard form.” He swore that the form used in issuing respondent’s policy- “has been OK’d by the Board at Austin”, and that all the several companies he represents “use this identical policy.” This testimony does not appear to have been controverted by respondent, so we may assume that his policy was what is known as a “standard form”; that is, it was in the form prescribed by the Insurance Commission of this state under the terms of the statute above quoted.

The purpose of the supervision and control of insurance in Texas by the Commission is to serve the public interest in that [591]*591business as well as to protect the rights of both insurer and insured. As a part of, and as an aid to, that supervision and control the Commission was authorized and directed to prescribe a uniform standard automobile insurance policy so that all parties at interest may know what their respective rights and obligations are under it.

Thus every measure of protection this standard policy could possibly afford the insured under petitioner’s plan of operation is set out in eight different “coverages” following the plain and specific statement that “the insurance afforded is only with respect to such mid so many of the following coverages as are indicated by specific premium charge or charges.” So when respondent received the policy in question from petitioner’s agents the language just quoted invited him to look at his policy, and if he did so he could see that his automobiles were insured against only the risks designated by Coverages B-l, C, D and E, because only against those were premium charges made— it was only for insurance against those risks that he was undertaking to pay. Conversely, by reference to Coverages A, B-2, F and G, against which no premium charges appeared and for which he therefore knew he was not being charged, he could just as easily determine what risks petitioner was not insuring him against. By reading Coverage F he could discover that he was not insuring his automobile against damage from flood waters for the obvious and sufficient reason that he was not paying for any such insurance.

The parties agree that there is no Texas case in point and we have found none. However, Henry v. Dubuque Fire & Marine Ins. Co., 185 S. W. 2d, 658, by a Missouri Court of Appeals, is almost paralled with the case at bar. The opinion is not clear as to the terms of the policy. But petitioner says in its application that it got from the clerk of that court an abstract of the record in that case, and its statement as to what the abstract discloses is in no manner challenged by respondent. According to petitioner, that abstract shows that (1) the policy in suit bad 10 available coverages, including E and F; (2) Coverage E was designated as “Windstorm, Earthquake, Explosion or Hail” and bound insurer “to pay for loss of or damage to the automobile hereinafter called loss, caused by Windstorm, Earthauake, Explosion, Hail or External Discharge or Leakage of Water”; (3) Coverage F was called “Combined Additional Coverage” and by it the company agreed “to pay for loss of or damage to the automobile hereinafter called loss, caused by Windstorm, Earthquake, Explosion, Hail, External Discharge [592]*592or Leakage of Water, Flood or Rising Waters,

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Glens Falls Insurance v. McCown
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Bluebook (online)
236 S.W.2d 108, 149 Tex. 587, 1951 Tex. LEXIS 462, Counsel Stack Legal Research, https://law.counselstack.com/opinion/glens-falls-insurance-v-mccown-tex-1951.