American Fidelity & Casualty Co. v. Traders & General Insurance

Mr. Justice Smith

joined by Justice Norvell dissenting.

Traders & General presented two questions in the Court of Civil Appeals: (a) that its policy did not afford any coverage for the accident or hazard made the basis of Duff’s suit against Mizell for bodily injuries, and (b) in the alternative, the trial *562court erred in not granting Traders & General Insurance Company indemnity over against American for such amounts as it may have to pay under the judgment of the court.

The Court of Civil Appeals, in effect, has sustained both points, although its holding that Traders & General’s policy afforded no coverage for the accident in question rendered it unnecessary to pass upon the question of indemnity.

This court in reversing the Court of Civil Appeals has held that the lease site where the accident occurred was under the general control and management of Mizell. This led to the conclusion that “insofar as the judgment of the trial court granting contribution between the two companies was reversed by the Court of Civil Appeals, the latter court’s judgment should be-reversed and that of the trial court affirmed.” With this conclusion I cannot agree. There is no evidence in the record that Mizell controlled the site under the meaning of the word “control” as intended by the parties to the insurance contract. The policy issued by Traders & General is strictly a “premises” policy, whereas, American’s is an “automobile policy.” Traders & General’s policy insured Mizell’s premises at Ganado, Jackson County, Texas, as described in the Declarations of the Policy. In this connection, I would say that the policy would also afford coverage on other premises that Mizell might have acquired by way of owning, renting, or controlling same in the sense of having dominion over it, as he did the premises specifically described and situated in Ganado, Texas. The primary intention of Mizell and Traders & General was to furnish protection to this extent and no further. American’s automobile policy, already in effect, afforded coverage for the loss sustained on the occasion in question. Traders & General’s policy specifically excluded the use of automobiles and liability coverage therefor, and insured only Mizell and not his employees. The Traders & General’s policy contains language essential to a holding in its favor. This language follows closely that suggested in the case of Associated Indemnity Corporation v. National Surety Corporation, Texas Civ. App., 287 S.W. 2d 714, no writ history. Had the Associated policy contained such language a different result, no doubt, would have been reached. In that case one party issued an automobile liability policy, as did American in this case, and the other party issued a premises policy, as did Traders & General in this case. However, the policies involved in the Associated case and this are entirely different. Justice Norvell, speaking for the San Antonio Court of Civil Appeals, in the Associated case, pointed out that “the schedule in turn *563contained the words, ‘State of Texas,’ as designating the ‘premises,’ and ‘operations’ to which the policy was applicable.” The court went on to say: “* * * Here we have a territorial designation, namely, the State of Texas. As the word ‘premises’ indicates a location, or something similar thereto, it seems that any job site within the State of Texas where the trucking company is engaged in operations would satisfy the policy requirements of the definition of ‘premises’ contained in subdivision (a) thereof. * * * The form of the printed policy may suggest that a specific designation of a building or structure should be made. However, neither the main office of headquarters of the insured, located at Sinton, Texas, nor the branch office in Alice, was designated as the ‘premises’ covered by the policy, and for the court to now so designate them would be to add to and remake the agreement of the parties * * * . Had appellant (Associated) desired to restrict the coverage of its policy to the ‘premises’ occupied by insured’s offices and attendant facilities located in Sinton or Alice, Texas, it could have so expressly provided in its policy. Not having done so, a liberal construction in favor of the insured requires that the policy be interpreted so as to include not only the offices but the job sites, within the State of Texas where the trucking company carried on operations (Emhasis aded.) This liberal construction was given solely because the terms of the Associated policy did not restrict the “premises” to a place certain. In the instant case, the Traders & General policy designation specifically restricts its coverage to accidents occurring on the premises at Ganado, Jackson County, Texas. The accident occurred at a job site in Montgomery County, Texas, not on premises under the control and dominion of Mizell, but under the ownership, control and dominion of one Peters. This conclusion is inescapable in the light of the meaning of the word “control” as defined in Words and Phrases, perm. Ed., Vol. 9, p. 434, and the undisputed evidence. The word “control” was defined in the case of Board of Insurance Commissioners v. Duncan, Texas Civ. App. (1943), 174 S.W. 2d 326, wr. ref., citing Webster’s New International Dictionary, as: “To exercise restraint or deciding influence over; to dominate; regulate; to hold from action, to curb; subject or overpower.” Words and Phrases, supra, defines “control” as: “To control means to exercise restraint or deciding influence over; to dominate: regulate; to hold from action; to curb; subject or overpower.”

The effect of this court’s holding in the present case is that though the wording of Traders & General policy was precisely restrictive in the way and manner as suggested in the Associ*564ated case, supra, it (Traders & General) was nevertheless liable for contribution to American.

Mizell was engaged in the trucking business. By the very nature of his operations, Mizell was engaged in loading and unloading with the use of cranes and winches throughout his vast operations. It is perhaps not controlling, but to me it is significant that the respective policies show the great number of trucks that were endorsed upon that policy. Traders & General received a premium of $900.00, whereas, American received a premium of $36,000.00. Immediately the question: Why? The answer is simply that an insured pays a premium in accordance with the terms of his contract. Traders & General’s was a “premises” policy. The policy described the premises as being located in Ganado, Texas. The policy was intended to provide Mizell with protection on his own premises for liability accidents. The policy provided protection for other premises that Mizell might have acquired control of during the life of the policy, vrovided such after acquired property was premises over which Mizell had the right of control and dominion, and provided, further that such additional premises had been endorsed on the policy and an additional premium paid therefor.

This is not a case where an injured workman has been deprived of his compensation. So far as Duff, the workman, is concerned, the insurance of American for which it received a premium of $36,000.00 was adequate to take care of the judgment. The two policies in cuestión were issued simultaneously to afford coverages for different risks. The accident involved occurred on a job site far away from Ganado, Texas, and on a site not endorsed on the nolicy. The accident occurred on premises under the control of Peters. Mizell had no authority over Peters, the owner of the well. The agents of Mizell, according to the findings of fact of the trial court in the case of Duff v. Mizell, committed the negligent act. American got $36,000.00 for covering this risk. American should not be permitted to shift off a portion of its sole responsibility on Traders & General whose obvious intention was to limit its liability as outlined in its policy.

The judgment of the Court of Civil Appeals should be affirmed.

Opinion delivered March 30, 1960.