Hardware Mutual Casualty Co. v. Buck's Tri-State Irrigation Engine Co.

500 S.W.2d 897, 1973 Tex. App. LEXIS 2645
CourtCourt of Appeals of Texas
DecidedOctober 15, 1973
DocketNo. 8387
StatusPublished
Cited by3 cases

This text of 500 S.W.2d 897 (Hardware Mutual Casualty Co. v. Buck's Tri-State Irrigation Engine Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hardware Mutual Casualty Co. v. Buck's Tri-State Irrigation Engine Co., 500 S.W.2d 897, 1973 Tex. App. LEXIS 2645 (Tex. Ct. App. 1973).

Opinion

ELLIS, Chief Justice.

In this appeal, the insurer-appellant challenges the trial court’s judgment in favor of the insured-appellee on the grounds that (1) the appellee’s loss of the particular personal property was excluded from coverage under the policy provisions; or (2) in the event of liability, recovery should be reduced in accordance with the pro rata reduction provisions of the policy because of appellee’s failure to include this property in its total value of reported inventory prior to the loss. The judgment of the trial court is affirmed as to liability and reformed as to the amount of recovery.

Buck’s Tri-State Irrigation Engine Co., Inc., instituted suit against Hardware Mutual Casualty Company to recover under a merchant’s property insurance policy issued by defendant-appellant. The claim forming the basis of the suit arose from the theft of certain items of equipment and component parts of a racing vehicle, commonly known as a “dragster,” owned by the appellant corporation and used by it primarily for advertising purposes. The main place of business of the corporation is located at 4452 Canyon Drive in Amarillo, Texas, but for most of the time prior to the loss and claim here involved, the property in question was kept in Lubbock, Texas. At the time of the theft the dragster, parts and equipment were located in a certain rented garage in Lubbock. The claimant alleged that the total value of the various items stolen was $9,783.70; however, some of the listed items were recovered, a part of which had been damaged subsequent to the theft.

There are two provisions in the insurance policy pertinent to decision in this case. The first is entitled “PROPERTY EXCLUDED” which reads in part:

“This policy does not insure:
“A. Aircraft, automobiles;” (emphasis added).

The term “automobiles” is not defined in the policy. The second provision relates percentage liability limitations:

“In the event of loss or damage insured hereunder the Company shall be liable for no greater proportion of such loss or damage than the total values last reported by the Insured prior to the loss or damage bears to the actual total values for the period for which such report was made.”

This provision is operative in connection with the requirements in the policy that the insured make monthly reports to the company of the actual cash value of its stock of merchandise, equipment, fixtures, etc. Under the terms of the policy the insurer was not liable for loss or damage of personal property for more than $110,000.00 at the plaintiff’s designated Amarillo location, or more than $10,000.00 “at any unnamed location.”

After trial before the court without a jury, the court entered judgment for the insured in the sum of $8,153.55, plus interest and costs. In its judgment, the trial court made findings that (1) the property stolen was not an “automobile” within the exclusionary provision of the policy; and (2) the evidence was sufficient to show that plaintiff complied with the inventory reporting provision of the policy and that such stolen property was included within the total amount of the last inventory submitted to the insurer before the theft. Appellant has predicated its appeal on three points of error.

[899]*899In its first point of error, appellant asserts that the court erred in rendering judgment on the basis of its finding that the stolen property was not an “automobile” within the exclusionary terms of the policy. The evidence showed that the dragster and a large quantity of new and used parts were stored in the garage in Lubbock. The dragster vehicle was not taken and nothing was removed from it. The property stolen consisted wholly of parts and items of equipment lying at various places within the garage and intended for use on the dragster. Some of the parts had been on the dragster at one time and removed, while others were new and had never been taken from their containers.

Appellant cites the case of Steiker v. Philadelphia Nat. Ins. Co., 11 N.J.Super. 55, 77 A.2d 513 (1950) in support of its contention that the term “automobile” includes parts of a vehicle which have not been attached to the vehicle. The fire insurance policy in that case stated that the terms “ ‘Automobile shall also include its equipment and other equipment permanently attached thereto’.” (emphasis added). The court held that there was nothing in the policy to indicate a requirement that the equipment be attached. However, the court’s determination was made on the basis of the words “its equipment” in the policy. We note that the policy here merely excludes automobiles from its coverage, and makes no mention of “its equipment” as did the policy in the Steiker case. In this connection, the appellee contends that even if the theft of the various parts he considered as technically the theft of the dragster, such dragster was not an “automobile” within the exclusionary terms of the policy. The case of Futrell v. Indiana Lumbermens Mutual Insurance Company, 471 S.W.2d 926 (Tex.Civ.App. — Houston [1st. Dist.] 1971, no writ) dealt with an automobile insurance policy which, as in the instant case, contained no definition of the term “automobile.” The court in that case, while holding that a motorcycle was not an automobile in the ordinary sense of the word, specifically held that the term “automobile” was not ambiguous, and that terms used in an insurance contract are given their ordinary and generally accepted meaning unless the policy shows the words were meant in a technical or different sense. There is no indication in the policy in the instant case that the term “automobile” was intended to have a technical or different meaning.

A basic matter for determination is whether a dragster of the type here involved is included in the generally used and accepted meaning of the term “automobile.” Appellant relies upon the case of Williams v. Cimarron Insurance Co., 406 S.W.2d 173 (Tex.1966) in support of its contention that the dragster here involved was an automobile. The vehicle in that case was a stripped-down 1947 Ford sedan with a 1954 Mercury motor which had been originally manufactured by the Ford Motor Company and later modified and converted into a stock car racer. It had no headlights, tail lights, windshield, horn, or any other safety equipment and was not licensed for operation on any public highway. The insurance policy in question defined the term “automobile” as follows:

“ . . .a land motor vehicle or trailer not operated on rails or crawler-treads, but does not mean: (1) a farm type tractor or other equipment designed for use principally off public roads, except while actually upon public roads, . ” (emphasis added).

The court held that the racing vehicle in question was not an automobile within the exclusionary terms of the policy since it was designed for use principally off public roads. Although it was stated in the court’s opinion that the vehicle “was an automobile within the usual meaning of the term,” we do not consider that the Williams case, when viewed in its entirety, is applicable to the instant case. The racing vehicle in Williams had at one time been a standard automobile designed for use on public streets and highways.

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Bluebook (online)
500 S.W.2d 897, 1973 Tex. App. LEXIS 2645, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hardware-mutual-casualty-co-v-bucks-tri-state-irrigation-engine-co-texapp-1973.