Maryland Casualty Co. v. Hopper

Court of Appeals of Texas

Maryland Casualty Co. v. Hopper

237 S.W.2d 411, 1950 Tex. App. LEXIS 1816

CourtCourt of Appeals of Texas

DecidedDecember 13, 1950

Docket4776

StatusPublished

Cited by35 cases

This text of 237 S.W.2d 411 (Maryland Casualty Co. v. Hopper) 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

Maryland Casualty Co. v. Hopper, 237 S.W.2d 411, 1950 Tex. App. LEXIS 1816 (Tex. Ct. App. 1950).

Pincite

Opinion

McGILL, Justice.

Appellee W. L. Hopper sued appellant Maryland Casualty Company on a manufacturer’s and contractors’ schedule liability policy of insurance issued by appellant to him. He sought to recover the amount he had paid to the owners of an oil and gas lease for the destruction of an oil storage tank due to an explosion caused by his negligence. He also sought to re-' cover reasonable, attorney’s fees. Appellant denied coverage under the policy on the ground that the tank destroyed was “in the care, custody or control” of the insured, within the meaning of an exclusion clause which excluded from the risks covered property “in the care, custody or control of the insured.”

The case was tried to the court .without a jury on an agreed stipulation as to the facts. The court rendered judgment for appellee for $1348.01, the amount he had paid the leaseholder-owners for the tank and for $250.00 attorney’s fees with the further provision that “In the event that the defendant shall perfect its appeal herein to any Appellate Court, then in that event the plaintiff, W. L. Hopper, do have and recover of defendant Maryland Casualty Company, a corporation, the sum of $500.00 as reasonable attorney's fees in lieu of the sum of $250.00 above adjudged and decreed. * * * ”

Appellant has presented three points. We shall first deal with the 3rd and 2nd points, which are: (3) That the court erred in holding that the damaged property was not in the care, custody or control of plaintiff (insured) ; and (2) That plaintiff established that the loss sustained did not lie within the excepted risk and that it did lie within the general terms of the policy.

Appellant’s agreement under “Coverage B — Property Damage Liability” was: “To pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages because of injury to or destruction of property, including the loss of use thereof, caused by accident and arising out of the hazards hereinafter defined.”

One of the defined hazards was: “Division 1. Premises-Operations. (1) The ownership, maintenance or use of the designated premises, and all operations which are necessary or incidental thereto, * * *»

The exclusion on which appellant relies is: “This policy does not apply to (G) ‘Under coverage B, to injury or destruction of (1) property in the care, control or custody of the insured’ ■ * * * ’’’.

We think appellant is correct in its contention that the burden rested upon the plaintiff to show that his cause of action did not fall within the excepted risk; in other words, that the loss did fall within the restricted coverage. 24 Tex.Jur. Sec. 388, p. 1248; American Casualty & Life Co., v. Butler, Tex.Civ.App., 215 S.W.2d 392, w.r.n.r.e.

However, it is our conclusion that such burden was met by the agreed facts and that the court did not err in holding that the property damaged was not in the care, custody or control of the insured. We here reproduce the stipulation:

“It is agreed by and between the parties hereto that the facts upon which this controversy is based and upon which same shall be submitted to a Court of competent jurisdiction for determination upon the law are as follows:

*413 “I.

“On or about the 22nd day of April, 1949, Maryland Casualty Company, acting by and through its duly authorized agent, Dean & Dean Insurance Agency of Pecos, Texas, did issue a certain manufacturers and contractors schedule liability policy to W. L. Hopper of Mentone,. Texas, being Policy No. 53-11897, effective from the 22nd. of April, 1949, to the 22nd. day of April, 1950, for a valid consideration paid, and received by the company, and which policy was in 'full force and effect at all times in which the facts relative to the question here involved took place. That a copy of said policy is attached to this stipulation.

“II.

“On or about the 19th day of May, 1948, M. A. and J. S. Grisham and Grisham-Hunter Corporation were the owners and holders of an oil and gas leasehold estate in what is referred to as Tunstill Field, Loving County, Texas, and upon the completion of a well upon said lease some time prior to May 18, 1949, entered into a contract with W. L. Hopper as an independent contractor to go upon said leasehold es-. tate and to lay flow lines connecting said well to a battery of two 500 barrel capacity oil storage tanks and to lay a pipe line from the gathering pipe line system near the lease to said oil storage tanks on said lease, being a distance of approximately 2500 feet.

“III.

“That said tanks had been installed upon the premises by the Mapp Tank Company of Odessa prior to said W. L. Hopper entering upon the premises; that such installation of said tanks so made by the Mapp Tank Company was for the oil and gas leasehold owners; that said Mapp Tank Company built the embankment and foundation for said tanks, permanently set said tanks thereon, and that said tanks, when set in position, had' been installed with the necessary catwalks, ladders, all flanges for connection of pipe and pipe lines were threadded to receive pipe and in place on said tanks, and all'that was .required of the contractor connecting the tanks to the well and to -the pipe line was to connect the pipes, of the various • lines into the threadded flanges that were already in position.

“IV.

“That in pursuance to such Contract, W. L. Hopper on May 18th, commenced work and connected said well to Tank No. 1 through a separator by means of a 3" flow line, which flow line was also connected to Tank No. 2. Thereafter, Tanks Nos. 1 and 2 were connected by an equalizer line, which is mareá. ‘A’ on the attached plat. The output 'line and valve were screwed into the flanges on each of the tanks. About 10:00 o’clock P. M. on May 18th Hopper advised the oil and gas leasehold producer’s employees that Tank No. 1 could receive oil for the purpose of running a twenty-four hour test upon the well. At that time Tank No. 2 was not ready or in condition to receive oil.

“V.

“On May 18th, after being advised by Hopper that Tank No. 1 was ready to receive oil, the owners of the oil and gas leasehold estate had started running oil from the well to Tank No. 1 for test purposes and for the- purpose of storing the oil. The output valve on Tank No. 1, that is the valve connecting said Tank No. 1 to the pipe line, had been closed before the oil run was started, but through some oversight on the part of Hopper or his employees the valve connecting Tank No. 2 had not been closed. It was Hopper’s duty, as an independent contractor, to see that such valve on Tank No. 2 had been closed, and that the tank was in a safe condition for süch purposes, before applying heat to the pipe line which caused the explosion hereinafter described.

“VI.

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