I respectfully dissent. I disagree with the majority opinion with respect to the broad construction given the term `commercial automobile'.
The appellee's husband, Scott Ramsay, was killed while driving a utility pickup truck which was owned by the United States Navy. Ramsay was operating the vehicle with a Federal driver's license. Ramsay was classified as a civil service employee of the United States at Chase Field Naval Air Station, in Bee County, Texas. His specific classification was that of an air-conditioning mechanic. He did not do any private work, but worked exclusively for the Navy. On the day of the accident, Ramsay left Chase Field in a government-owned federally licensed pickup truck and proceeded to Capehart, a government-owned housing project for Navy personnel stationed at Chase Field. His purpose there was to install a compressor on an air-conditioning unit in one of the houses occupied by Navy personnel. Upon completion of the job and on his return to Chase Field, the accident occurred resulting in Ramsay's death.
Mrs. Rotha Ramsay, the widow of Scott Ramsay, brought suit to recover death benefits against Maryland American General Insurance Company after the company had refused to pay under its policy of insurance which named her husband as the insured. The trial court granted the widow's motion for summary judgment and rendered judgment for her. From that judgment, appellant insurance company has appealed.
There is no dispute that Ramsay was covered by the policy made the basis of this suit, unless it can be said that the Navy's vehicle was a commercial automobile. The insurance policy's `exclusion' states:
"This insurance does not apply:
(a) to bodily injury or death sustained in the course of his occupation by any person while engaged (1) in duties incident to the operation, loading or unloading of, or As an assistant on, a public or livery conveyance or commercial automobile, or (2) in duties incident to the repair or servicing of automobiles.' (Emphasis added).
In order for the above exclusion to apply, you must say as a matter of law that a United States, Navy-owned pickup truck is a `commercial automobile'. It is the appellee's contention that although her husband was in the course of his occupation at the time of his death, he was not engaged in duties incident to the operation of a commercial automobile. The United States Government and the United States Navy, in particular, are not involved in commerce. They are involved in governmental functions and national defense. The only way to exclude appellee from recovering is to hold that Ramsay was engaged in duties incident to the operation, loading or unloading of, or as an assistant on, a public or livery conveyance or Commercial automobile. Ramsay's vehicle was without question a government or military vehicle and the policy made the basis of this suit did not exclude government or military vehicles.
There is no question that the phrase `commercial automobile' in the context of the exclusionary clause of the policy has both a broad and a restricted meaning. The question before this Court is whether under Texas Law the broad or the more restrictive meaning should be given to the term `commercial automobile.' When an insurance policy is not ambiguous, it is the settled law of this State that the terms used in an insurance policy are to be given their plain, ordinary and generally accepted meaning unless the instrument itself shows that the terms have been used in a technical or different sense. Guardian Life Insurance Company of America v. Scott,405 S.W.2d 64 (Tex.Sup. 1966); Western Reserve Life Ins. Co. v. Meadows, 152 Tex. 559, 261 S.W.2d 554 (1953), cert. denied347 U.S. 928, 74 S.Ct. 531, 98 L.Ed. 1081 (1954). In determining the plain, ordinary and generally accepted meaning of the terms of an insurance policy, the courts universally have resorted *Page 143 to the aid of dictionaries. As defined in Webster's New International Dictionary (3rd ed. Unabridged, 1968), a commercial automobile is an automobile used exclusively for commercial use (as the transportation of cargo other than passengers). The term `commercial' is defined as 1: of, in or relating to commerce; 2a: from the point of view of profit; having profit as the primary aim. Also the term `commerce' is defined as the exchange or buying or selling of commodities, and particularly on a large scale and involving transportation from place to place.
The Navy was not engaged in commerce. If they are not so engaged, their vehicles could not be so engaged. This is particularly true in view of the fact that this vehicle was being used for Navy purposes, i.e., transporting a compressor for repair of a Navy Housing unit. This was in no sense a commercial enterprise. Although a pickup truck may be considered a `commercial' type vehicle, it also may be considered and in fact is used as a pleasure vehicle. It, therefore, follows that it is not the type of vehicle that is controlling, but the use to which the vehicle is put that controls whether or not the exclusionary provisions of the insurance policy apply. The deceased could not be considered to be a functioning tool of commerce or working in the general stream of commerce, because he worked exclusively for the Navy, a non-profit organization. He could not and did not receive a commercial call from a private person to repair a compressor nor could he nor did he use the Navy vehicle for a commercial venture.
This is a summary judgment case. There is no fact issue to be submitted to a jury where there is a dispute as to the interpretation of a provision in an insurance policy. This is so because such disputes are interpreted in favor of the insured. Under Texas law, if words and expressions used in insurance policies are susceptible of more than one construction, they must be interpreted strictly against the insurer and liberally in favor of the insured. Providence Washington Ins. Co. v. Proffitt, 150 Tex. 207, 239 S.W.2d 379 (1951); 32 Tex.Jur.2d Insurance § 59; Snyder National Bank v. Westchester Fire Insurance Company, 425 F.2d 849 (C.A.Tex.5th 1970); Hall v. Great National Lloyds, 154 Tex. 200,275 S.W.2d 88 (1955); Federal Insurance Company v. Bock, 382 S.W.2d 305 (Tex.Civ.App. — Corpus Christi 1964, writ ref'd n.r.e.); Commercial Standard Insurance Company v. Ford, 400 S.W.2d 934 (Tex.Civ.App. — Amarillo 1966, writ ref'd n.r.e.); Central Surety Insurance Corporation v. Anderson, 446 S.W.2d 897 (Tex.Civ.App. — Fort Worth 1969, no writ). It is also the law in Texas that when the contract is capable of two constructions, under one of which recovery is allowed, but under the other of which it is denied, that construction will be given which permits a recovery; and where two interpretations, equally fair, may be made, that which allows the greater indemnity must prevail. Millers Mutual Fire Insurance Company of Texas v. Hensley, 414 S.W.2d 488 (Tex.Civ.App. — Fort Worth 1967, no writ). See also State Farm Mutual Automobile Insurance Company v. Pan American Insurance Company, 437 S.W.2d 542 (Tex.Sup. 1969); Hardware Dealers Mutual Insurance Co. v. Berglund, 393 S.W.2d 309 (Tex.Sup. 1965). The purpose of an insurance contract being to furnish an indemnity against loss, the contract should be construed in such a way as to effectuate that purpose, rather than in a way that will defeat it. Travelers Indemnity Company v. Storecraft, Inc., 491 S.W.2d 745 (Tex.Civ.App. — Corpus Christi 1973, no writ); Commercial Standard Insurance Company v. Ford, supra at 936; National Emblem Insurance Company v. McClendon, 481 S.W.2d 186 (Tex.Civ.App. — Texarkana 1972, writ ref'd n.r.e.). This Court in a unanimous opinion said in Storecraft that: "An insurance policy must be strictly construed against the company writing it, and particularly of provisions that tend to defeat coverage . . ." (quoting from authority).
The vehicle in question was not involved in any proprietary operations for the United States Navy at the time of the accident. *Page 144 In Dickerson v. State, 169 S.W.2d 1005 (Tex.Civ.App. — Austin 1943), rev'd on other grounds, 141 Tex. 475, 174 S.W.2d 244 (1943), the Austin Court held that a member of the National Guard while engaged in the performance of his duties was involved in a governmental and not an industrial or proprietary activity. The analogy to an employee of the United States Navy is compelling.
If the insurance company had intended to exclude vehicles used in the insured's occupation, pickup trucks, or just trucks in general, it should or would have used those terms. If the insurance company had intended to exclude military vehicles or government-owned automobiles and trucks, it could have so provided. (For instance, many life insurance policies exclude coverage while riding in military aircraft). Such terms, however, do not appear and are not used in the exclusionary provisions of the policy in question.
The majority would seem to hold that since the pickup truck was not being used as a pleasure vehicle, it must follow that it was being used as a commercial automobile. I would hold that since the policy terms may be susceptible to two constructions, that construction most favorable to the appellee should be adopted.
For these reasons, I would affirm the judgment of the trial court.