The majority states that the term `commercial automobile' as used in the policy is not ambiguous. However, they go to great lengths to construe all of the facts (as favorable as possible), to bring the exclusionary clause into operation. The majority places great emphasis on these facts: that the deceased was servicing and repairing an air-conditioning unit; that he was doing this in the course of his occupation; that he was driving a pickup truck (a commercial type vehicle); and finally concluding that it was obvious that the principal purpose of the automobile that the deceased was driving, was to serve a `business need', not a `military need'.
Even the appellant insurance company falls into the same construing error in its brief. It states `. . . the pickup truck was being used in a proprietary function, that is the furnishing of off base housing not in any way directly connected with a military operation. Again, the proprietary and governmental theories of doctrines of immunity from liability are not concerned with insurance coverage.'
The majority cites the Supreme Court case of Guardian Life Insurance Company of America v. Scott cited originally in the Dissenting Opinion. This statement of the law is correct: `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.' (Emphasis supplied.)
The term commercial automobile as used in the insurance policy is limited to the `ordinary and generally accepted meaning', i.e., a vehicle used in commerce. This same type of construction was arrived at in the Guardian Life Insurance Company of America v. Scott, supra. There, the Supreme Court was presented with the question of whether the Devereaux Foundation of Victoria, Texas, was a hospital as defined in the insurance policy. There, the Court of Civil Appeals reversed the trial court, holding that it was a hospital. The Supreme Court reversed the Court of Civil Appeals holding that a policy which provides coverage only if `it has' stated facilities does not mean that there is coverage if it `has access' to such facilities in another institution at another place. Here, the purpose of the exclusionary clause in the subject insurance policy was to exclude persons who had sustained bodily injuries or death in the course of their occupation while engaged in duties incident to the operation (of driving a) . . . commercial automobile. The truck involved here was neither an automobile, nor was it a Commercial automobile.
A businessman driving the family automobile to and from work would not be excluded under the subject policy, of course. A taxi cab driver driving his taxi automobile in the course of his occupation would be excluded. The majority would exclude coverage (for instance), if the admiral of the Naval base was driving a Navy automobile while on his route to an inspection of the same housing unit where the deceased had been. (This was the admiral's allegedly commercial business). The solution to the interpretation of the exclusionary clause comes simply, or not at all, from the generally accepted meaning of the commercial purpose for which the vehicle is used. Only by the majority's construction, as compared to the ordinary and generally accepted *Page 147 meaning, can it be said that the insured was driving a `commercial automobile' instead of a Navy truck. The Texas laws require that where there are two interpretations, although equally fair, that which allows the greater indemnity must prevail. The purpose of the insurance contract is thus preserved.
The majority cites a number of cases from out of state. Not a single one gives comfort to the construction of a Texas insurance contract. They all can be easily distinguished.
The first case cited is Hardee v. Southern Farm Bureau Casualty Insurance Company, 127 So.2d 220 (La.App. 1961). It is cited for the proposition that the term `commercial automobile' is not an ambiguous term, but has a meaning readily ascertainable in the plain, ordinary and popular sense of the language used. However, the facts of the case are clearly distinguishable from the case at bar. The truck upon which the decedent in Hardee was killed was owned and used by him to transport pulpwood for the purpose of selling it for a profit. The court held that under these circumstances, the truck was clearly a commercial automobile, in the ordinary and popular meaning of the vehicle. In the case at bar, the truck was not used with a view toward profit by either its owner, the U.S. Government, nor by its driver, decedent. There was no public market.
The case of Kirk v. Nationwide Mutual Insurance Company,254 N.C. 651, 119 S.E.2d 645 (1961) is also not in point. In that case, the truck in question (a 2 1/2 ton Chevrolet maintenance truck) was used principally in the business of the Southern Railway Company and the court therefore held it was a `commercial automobile'. Thus, that quoted portion set out in the majority opinion, i.e., `The test is the character of the use of the vehicle taken into consideration with the form of the car,' is not at all applicable to the case at bar, in that it pertains to the business of the deceased's employer, Southern Railway Company, and such business being commercial in nature, caused such truck to be considered a `commercial automobile'.
The majority cites the case of Bauerle v. State Farm Mutual Automobile Insurance Company of Bloomington, Illinois,153 N.W.2d 92 (N.D.Sup. 1967), for the proposition that the mere fact that a vehicle is not actually used by the driver to haul for `profit' is not conclusive in determining whether that particular vehicle is `commercial'. However, that case does not support that proposition at all. But, that court on the contrary held that: `The words `commercial use' connote use in a business in which one is engaged for profit.'
In Voelker v. Travelers Indemnity Company, 260 F.2d 275 (C.C.A. 7th Cir. 1958), also cited by the majority, the plaintiff was operating a National Guard truck returning from a two-week summer encampment when the driver was involved in an accident while in a military convoy. He sought a declaratory judgment for a determination of whether he was covered by his policy with the defendant insurance company. The policy exclusion in the Voelker case made no reference to `commercial vehicles'. It provided only that the insurance agreement did not apply to any automobile while used in a business or occupation of the named insured or spouse. The court, in holding that the vehicle was used in a business or occupation of such named insured, made no reference to business in the commercial sense, or as to profit.
The same holdings with reference to the same provision of the insurance policy as in the Voelker case are found in Blackwell v. United States, 321 F.2d 96 (C.C.A. 5th Cir. 1963); and Allstate Insurance Co. v. Hoffman, 21 Ill. App.2d 314,158 N.E.2d 428 (1959). Because no reference is made to `commerce', `commercial automobile' or profit in any of the policies in the above cases, the usual or customary meaning of the term `commercial' was not considered. These cases do not support the majority's position. In fact, in Glisson v. State Farm Mutual Automobile Insurance Company, *Page 148 246 S.C. 76, 142 S.E.2d 447 (1965), the court (contrary to the majority's position) held that a `jeep' (military vehicle) was not such a vehicle in the insured's business or occupation and held that such an exclusion was not applicable. The definition or application of the term `commercial automobile' had escaped the attention of all of the courts, including Texas.
I would grant the motion for rehearing and affirm the judgment of the trial court.