In my judgment the majority opinion misconstrues the language used in the policy involved here, and disregards certain *Page 613 fundamental rules that have long been in force and faithfully observed in the construction of insurance policies. I will briefly state the reasons for my dissent:
The original policy is before us, and the facts are undisputed. The insured paid a premium of $2,231.31 to the insurer for this policy. The policy is lengthy, and is partly printed and partly typewritten. The printed part of the policy was not sufficient to express the nature of the coverage, and in order to express the full scope of the coverage there were inserted certain typewritten supplemental matters, such as riders, exceptions, etc. The printed part of the policy insures the property against loss "in any one casualty, * * * while in transit." In addition thereto, there was specifically typewritten therein the further clause, "or otherwise within the limits of the Continental U.S. and Canada." The policy insures respondent against loss "in any one casualty," not only while the property is "in transit," but also "or otherwise within the limits of the Continental U.S. and Canada." The word "casualty" has long been used in insurance contracts, and has a well-defined meaning. See 14 C.J.S., Casualty, pp. 29-32. "Casualty" means accident; that which comes by chance, or without design, or without being a foreseen contingency. Chicago, St. L. N.O. Ry. Co. v. Pullman Southern Car Co., 139 U.S. 79, 11 S. Ct. 490, 35 L. Ed. 97; Anthony Co. v. Karbach, 64 Neb. 509, 90 N.W. 243, 97 Amer. St. Rept. 662; 6 Words and Phrases (Perm. Ed.), pp. 302-307.
Time and experience have developed certain rules for the construction of insurance policies. The insurer selects the language used in a policy, and in order to protect the rights of the insured the language used is construed favorably to the insured. The rule is now well settled that a policy of insurance prepared by the insurer will be construed liberally in favor of the insured and strictly construed against the insurer. Furthermore, if the terms used in the policy admit of two constructions, the construction favorable to the insured will be adopted. McCaleb v. Continental Casualty Co., 132 Tex. 65,116 S.W.2d 679; Commonwealth Bonding Casualty Co. v. Bryant,113 Tex. 21, 240 S.W. 893; Brown v. Palatine Ins. Co., 89 Tex. 590,35 S.W. 1060; Kemper v. Police Firemen's Ins. Assn. (Tex. Com. App.), 44 S.W.2d 978; 24 Tex. Jur., 702-711.
The rule is also well settled that exceptions, and words of limitation in the nature of an exception, are strictly construed against the insurer, like provisions for forfeiture; and this is especially true if the language used in the policy is reasonably *Page 614 susceptible of a double construction. International Travelers' Assn. v. Yates (Tex. Com. App.), 29 S.W.2d 980; American Fidelity Casualty Co. v. Williams (Civ. App., writ refused,34 S.W.2d 396; Howard v. Missouri State Life Ins. Co. (Civ. App., writ refused), 289 S.W. 114; Warren v. Springfield Fire M. Ins. Co., 13 Civ. App. 466, 35 S.W. 810; Norwood v. Washington Fidelity Nat. Ins. Co. (Civ. App.), 16 S.W.2d 842; 24 Tex. Jur., p. 704, sec. 28.
Policies of insurance in most instances are written for the benefit of the average man, who is not trained or experienced in the technical construction of contracts, and such policies should be construed from his viewpoint. In the case of Lewis v. Ocean Accident Guarantee Corporation, 224 N.Y. 18, 120 N.E. 56, 7 A.L.R. 1129, Mr. Justice Cardozo, in construing a policy of insurance, said: "* * * our point of view in fixing the meaning of this contract must not be that of the scientist. It must be that of the average man." That opinion was approved by this Court in the case of International Travelers' Assn. v. Francis,119 Tex. 1, 23 S.W.2d 282.
The federal courts hold that an insurance contract, any part of which is ambiguous, must be construed strongly against the insurer. Aetna Ins. Co. v. Houston Oil Transport Co., 5 Cir.,49 F.2d 121, certiorari denied Houston Oil Transport Co. v. Aetna Ins. Co., 52 S. Ct. 12, 284 U.S. 628, 76 L. Ed. 535; Love v. Northwestern Nat. Life Ins. Co., 5 Cir., 119 F.2d 251; Texas Digest, Vol. 22, p. 157.
The foregoing rules must be scrupulously observed if this insurance policy is to be correctly construed. In plain language, the policy insures the property of respondent against loss in any one casualty while in transit or otherwise. This was the language selected by the insurer to express the terms of the policy, and there is no difficulty in fixing the liability of the insurance company under this part of the policy. If the policy is to be construed in favor of the insurer and against the insured, the ground or reason for such construction must be found elsewhere in the policy. It is urged that the ground for such construction is found under the items described under "THIS POLICY, EXCEPT AS HEREINAFTER PROVIDED, INSURES AGAINST DIRECT LOSS OR DAMAGE BY" and the item listed under "THIS POLICY DOES NOT INSURE AGAINST." When these provisions of the policy are construed in connection with the other provisions of the policy, they do not nullify the general insuring clause. They do withdraw from the general insuring clause certain risks. The *Page 615 eleven specific risks enumerated in the policy are not exclusive. The listing of certain risks in the typewritten rider was for the purpose of definitely binding the insurer to the inclusion of such items. The listing of specific risks insured against, such as fire, earthquake, riot, etc., and the listing of exceptions, clearly shows that the policy was not intended to limit the damages insured against to a casualty sustained only "intransit." One part of the rider provides that "THIS POLICY DOES NOT INSURE AGAINST" and then enumerates a list of risks not covered by the policy. If it had been intended that the risks specifically listed were the only risks covered by the policy, then it would not have been necessary for the insurer to state further that certain other risks were not covered by the policy. Thus we have a policy providing under a general insuring clause against loss in any one casualty while "in transit or otherwise * * *," followed by a list of risks insured "against direct loss or damage by * * *," followed by a list of exceptions. If it had been the intention of the insurer to include in the rider all the risks arising from a casualty, this intention could have been stated in clear and unambiguous language, to the effect that the policy did not insure against risks not enumerated therein. But the policy does not so read.
The majority opinion has not cited any authority to sustain its construction of this policy. This policy undoubtedly is unique, but it should be construed according to well-established rules. Too, there are decisions construing policies somewhat similar or analagous to this one. See Liverpool London Globe Ins. Co. Ltd. v. Jones et al., 207 Ark. 237, 180 S.W.2d 519; C. J. Commercial Driveway, Inc. v. Fidelity Guaranty Fire Corporation, 258 Mich. 624, 242 N.W. 789; Importers' Exporters' Ins. Co. v. Jones, 166 Ark. 370, 266 S.W. 286; American Automobile Ins. Co. v. Fox (Civ. App., writ dismissed),218 S.W. 92.
It was argued in those cases that the policies did not cover the losses involved, just as it is argued here that the loss involved in this case is not covered by the policy sued on. The Supreme Court of Arkansas in the case of Liverepool London Globe Ins. Co., Ltd. v. Jones et al, supra, after setting out certain provisions of the policy and the contentions of the insurer that it was not liable under the policy, said:
"It is argued, however, that paragraph C cannot be applied for the reason that the automobile was not injured by the `stranding, sinking, burning, collision or derailment of any conveyance in or upon which the automobile is being transported *Page 616 on land or on water.' This contention was sustained by the Ontario Supreme Court in the case of Wampler v. British Empire underwriters' Agency, 54 Dom. L.R. 657, in a suit upon a similar policy, where it was said: `And the risk that the policy assumes is the stranding, burning, sinking, collision and derailment of the conveyance containing the motor car while being transported by land or water.' The facts in that case were that the plaintiff was crossing a stream on a ferry operated by means of a chain and he proceeded to drive his car off the ferry when it reached the land and `While he was doing so, after the front wheels had reached the land the ferrey began to move away with the result that the car dropped into the river.' It was there said that this was not a risk insured against; but we refused to follow that holding in our case of Importers' Exporters' Ins. Co. v. Jones,166 Ark. 370, 266 S.W. 286, 288. In so doing Justice Wood, speaking for this court, said:
"`To be sure, by feather-edge refinements in the construction of language and a process of strained reasoning, the language of clause (b) is susceptible of the construction given it by the Canada court, and in accordance with the contention of learned counsel for appellant. But such construction would not carry out the intention of the parties to the contract. It was manifestly their intention, by the language used, to cover all conceivable losses to the automobile while it was being transported, and they used the terms "sinking, collision, stranding, burning, and derailment" as an enumeration of the methods by which such loss or damage might occur. When the subject matter of the insurance and the language of the policy as a whole is considered, it certainly cannot be said that it was the intention of the company to limit its liability to the appellee for a loss or damage caused only by the sinking, collision, stranding, burning, and derailment of the conveyance in which the car was being transported, rather than the "sinking," etc., of the car itself. The words "sinking," etc., were words of enumeration or description of the manner of loss of the car rather than a limitation of the liability to the manner of the description of the vehicle or means of transportation. Such we believe to be the plain common sense meaning of the contract. Any other view would lead to the rather absurb conclusion that although the automobile was damaged or destroyed by "sinking," yet the appellant did not intend to be liable for such loss or damage unless the boat in which the car was being transported was also lost or destroyed by "sinking," etc. If such was the meaning of the appellant, it should have used phraseology that would express it in plain terms, instead of ambiguous language indorsed *Page 617 in exceedingly fine print among multitudinous other provisions on the back of the policy.'"
There are also cases holding that a policy containing a general insuring clause, such as one against fire, or perils of the sea, or collision, and containing exceptions, will be construed as covering all casualties which result under the general risk insured against, except those expressly excepted in the policy. Wood v. Southern Casualty Co. (Civ. App., writ dismissed),270 S.W. 1055; Howard Fire Ins. Co. v. Norwich N.Y. Transportation Co., 12 Wall. 194, 79 U.S. 194, 20 L. Ed. 378; Union Ins. Co. v. Smith, 124 U.S. 405, 8 S. Ct. 534, 31 L. Ed. 497; Importers' Exporters' Ins. Co. v. Jones, 166 Ark. 370, 266 S.W. 286.
In the case of Howard Fire Ins. Co. v. Norwich N Y Transportation Co., supra, in discussing the liability of the insurance company, it was said:
"It is true, as argued, that as the insurance in this case was only against fire, the assured must be regarded as having taken the risk of collision, and it is also true that the collision caused the fire, but it is well settled that when an efficient cause nearest the loss is a peril expressly insured against, the insurer is not to be relieved from the responsibility by his showing that the property was brought within that peril by a cause not mentioned in the contract."
In its construction of the policy the majority opinion lays stress on the words "Transportation Policy," printed at the top of the policy. The policy discloses that its printed portion was supplemented by much typewritten matter, some of which broadened and some of which limited the scope of the policy; and, of course, all parts of the policy must be construed together. Certainly the words "or otherwise" were inserted in the policy for some purpose. As shown, the policy contains a general insuring clause, riders, exceptions, etc., and I do not think that it can be said, when the entire policy is considered, that it is so clear that it must be construed in favor of the insurer and against the insured. If the language of the policy admits of two constructions, then it must be construed in favor of the insured. And for proof that the policy is susceptible of two constructions, one need but look at the course of this suit through the courts. In the trial court the policy was construed favorably to the insurer. Upon appeal to the Court of Civil Appeals, that court, speaking through Chief Justice Montieth in an exhaustive opinion, construed the policy in favor of the *Page 618 insured. And now, the matter being before this Court, there is not a unanimity of opinion as to the construction to be given the policy.
Construing the language of the policy in connection with the rules stated above, I am convinced that it covers the loss of the machinery and equipment of the insured, and that he is entitled to recover thereunder. I think the judgment of the Court of Civil Appeals should be affirmed.
Taylor, Associate Justice, joins in this dissent.
Opinion delivered April 7, 1948.
ON REHEARING. Rehearing overruled May 19, 1948.