joined by Justice, Sharp, dissenting.
I regret that I must dissent from the view taken by the majority of the Court in the disposition of this case. I will omit a restatement of the facts set out in the majority opinion, but I will add such additional facts as I deem pertinent.
From the evidence taken in the trial of this cause it appears that the respondent relied upon the judgment and advice of a Mr. Turner, an insurance agent of the petitioner, in the selection of the coverage he paid for in the contract of insurance sued upon. He and Mr. Turner were friends and had discussed his need for insurance on his stock of used cars. Mr. Turner was familiar with respondent’s type of business and purported to understand hie- needs as to insurance coverage relating to such business. Mr. Tu 'ner never talked over or explained to respondent the extent of his coverage in the policy which respondent now sues on. Mr. Turner would send respondent a policy each year along with his bill which respondent would pay.
At this point it might be well to call attention to the form of the policy involved in this case. The petitioner contends that the contract was written by using a Texas Standard Policy form which had been prescribed by the Insurance Commissioners of this state; that by virtue of the use of such form the insured could not possibly be misled or deceived as to the coverage contracted for.
Now suppose we examine the policy. At the top of the first page, we find printed the words “Texas Automobile Policy”. *595Next, we find “Glens Falls Insurance Company, Glens Falls, N. Y. A Stock Insurance Company, herein called the Company”. Next, we find the word “Declarations”. The first declaration made by the Company is that it named the insured as Fred W. McCown. The next declaration which has a direct bearing on the issue involved is printed in extra large capital letters as follows: “Coverage - E - Windstorm, Earthquake, Explosion, Hail or Water” (italics mine) and opposite you find the amount of the premium.
Again dealing only with the pertinent portion of the policy, we find the signature of the Turner Insurance Agency appearing at the bottom of the first page. Also appearing on this first page, we find another possible coverage, to-wit: “F-Combined Additional Coverage.” However, no premium was paid for this; therefore, Coverage F forms no part of the contract.
All of the above quoted provisions stand out in bold relief on the first page of the policy over the signature of the agent of the Company.
Then follows page 2 of the policy which is a much longer page than the first and at the top of the page we find the words “Automobile Dealers’ Monthly Reporting Form-Form 3.”
It will be noted that although page 2 is designated as above stated, yet a reading of the entire page will clearly convince anyone that there is not a single provision relative to the designated subject and we further stress the fact that this page does not contain any provision pertaining to the issues involved in this case.
Now we turn to page 3 and find at the top of the page the words “Glens Falls Insurance Company, Glens Falls, N. Y. (A Stock Insurance Company, herein called the Company).” Then follows in fine print a more detailed explanation of the Coverage “E”, and instead of using the word “water”, the following words are used in lieu thereof; “external discharge or leakage of water except loss resulting- from rain, snow or sleet”. Then follows a more detailed explanation of the meaning of Coverage “F” and for the first time we find the words “flood or rising waters * * Bear in mind that Coverage “F” was not contracted for and also keep in mind that on page 1 of this policy Coverage “F” only contains the “Combined Additional Coverage”. Therefore, we are of the opinion that the additional provision in Coverage “F” on page 3 cannot in any manner be *596used to vary the terms of the contract agreed upon by the parties. Granting for the sake of argument that all provisions of the policy, including section “F”, may be considered in determining the intention of the parties, it still remains our firm conclusion that the damage sustained by respondent is properly recoverable under Coverage “E”.
From the face of the policy it appeared that respondent was covered against loss caused by B-l, “Collision or Upset”; C, “Fire, Lightning, and Transportation”; D, “Theft”; and E, “Windstorm, Earthquake, Explosion, Hail or Water” (italics mine.). It is noted that Coverage “F”, which petitioner claims covers the loss complained of rather than Coverage “E”, is listed as “Combined Additional Coverage” which gives no hint as to the extent or nature of its coverage as do all of the other listed coverages.
Of course, respondent must recover under the terms of Coverage “E”, or not at all. Therefore, our sole question for determination is, does the wording of Coverage “E” of the policy set out on the face of such policy as “Windstorm, Earthquake, Explosion, Hail or Water” and defined in another part of the policy as “To pay for direct and accidental loss of or damage to the automobiles, hereinafter called loss, caused by windstorm, hail, earthquake, explosion, external discharge or leakage of water except loss resulting from rain, snow, or sleet”, which is the coverage contracted for, cover the loss sustained by respondent, and not whether Coverage “F” not contracted for, ivould also cover the loss. (Italics mine.)
We are met at the outset by the familiar and long established rule of construction that insurance policies will be construed liberally in favor of the insured. McCaleb v. Continental Gas Co., 132 Texas 65, 116 S. W. 2d 679, and cited cases. Therefore, if the loss sustained by respondent can reasonably be said to have been caused by an “external discharge or leakage of water,” then he must recover.
As stated by the Court of Civil Appeals in its opinion, 228 S. W. 2d 949, 951, “It is plain that the parties intended that the policy should insure against some kind of damage caused by water. Under the argument advanced by the insurer, the coverage was rather narrow. It was intended to include only damage caused by leakage of a rather small amount of water, or discharge of water from some place of confinement, as from water pipes, for instance.” It must be borne in mind that *597petitioner’s agent, Mr. Turner, was familiar with respondent’s type of business and selected his coverage for him, or at least advised him concerning such coverage. If Coverage “E” was intended to cover only those losses contended for by petitioner, how could respondent possibly suffer such a loss, when you consider the location of the automobiles damaged? Since the cars were located on an open lot, there were no pipes running overhead from which a leak or discharge might spring. To adopt the construction advanced by petitioner would render the contract of insurance relating to water damage an empty and hollow thing. Such a construction would lead to the conclusion that Mr. Turner sold respondent insurance that he (Mr. Turner) knew there was no need for. In the absence of proof to the contrary, we must assume that Mr. Turner did his job in an ethical and competent manner.
The evidence is uncontradicted that part of the water causing respondent’s loss was water which flowed over or broke through the levees erected to protect the lowlands, upon which respondent’s used car lot was located, from the flood waters of the Trinity River. These levees were erected some distance from the river to contain the water after it rose out of the banks of the river. Their very purpose was to hold back such water and confine it to the area between the levees. When some of this flood water poured through an opening in the levee or over the top of such levee, it escaped its confinement, and it was this water that caused respondent’s loss.
Webster’s New International Dictionary, Second Edition, defines the word “discharge” as a removal, an unloading, a release from confinement, a flowing or issuing out. Throughout these definitions runs the idea of release of a person or object from a place of restriction or confinement. I agree wholeheartedly with that part of the Court of Civil Appeals opinion, 228 S. W. 2d 952, which says, “If a dam should break, it seems to us that the ensuing flow of water would probably be called a discharge of water from the lake. Likewise, if a levee should break and release water from the channel where it had been confined, it seems to us that it would be proper to call it a discharge of water from such channel. We also think it would be proper to term the flow of water over the top of a levee as a discharge of water from the channel made by the river and levee system within which it would normally be contained.” It takes no stretch of reason to say that it was an “external discharge or leakage of water” which caused the injury to respondent’s property.
*598“Flood or rising waters” is much more general in nature than is the “external discharge or leakage of water”, and would cover many instances that the latter would not, but that does not mean that in some circumstances both could not be applicable. Under some situations water could be flood water and at the same time be an “external discharge or leakage of water.” In this connection it is noted that Coverage “E” did not expressly exclude liability for loss caused by “flood or rising waters.”
The term “flood or rising waters” describe a type or kind of water distinguishing it from tidal water or rain water. The term “external discharge or leakage of water” relates to an event or a happening. It does not describe a type or kind of water as does the former term.
In the case before us it cannot be seriously questioned, nor is it questioned, that the loss incurred by respondent was caused by flood water. The water that overflowed the banks of the Trinity River was flood water and continued to be flood water. However, when the flood water rose to such heights as to pour over or break through the levee, such water also constituted an “external discharge or leakage of water”. It was this event, this “external discharge or leakage of water”, that caused respondent’s loss, and it was this event that he insured against by the express terms of Coverage “E”.
The parties having agreed that there are no Texas cases in point, the majority gives considerable weight to the case of Henry v. Dubuque Fire & Marine Ins. Co., 185 S. W. 2d 658, by a Missouri Court of Appeals. However, that case is easily distinguishable on the facts. In the Henry case it appears that the automobile upon which the policy of insurance had been taken was damaged when the insured was compelled to leave it in a stream when he was unable to drive it across. In that case there was no “external discharge or leakage of water”, the river merely continued to rise until it engulfed the car which had been left within the stream. The automobile in that case was damaged by “flood or rising- waters” as were the automobiles in this case, but there the similarity between the two cases ends, for, as has been stated, in the Henry case there occurred no “external discharge or leakage of water” as in the instant case. Had the automobiles in this case been located between the levees, there would probably be no grounds upon which respondent could recover, but the cars having been located outside the levees, they were damaged by an “external discharge or leak*599age of water” when the flood water flowed over or broke through the levee and engulfed them.
Attention is again called to the fact that, according to the evidence, the levees were a considerable distance from the river, and we further find from an examination of the evidence that the hard rain actually began on May 16, 1949, and that the external discharge of water from the levees did not occur until some time on the morning of May 17, 1949, which demonstrates clearly that the levees did in fact contain the water for several hours before the break in the levees occurred and the water was discharged causing the damage to respondent’s automobiles.
From the evidence in this case it is clear that the insurer, the petitioner herein, was thoroughly familiar with the location of the lot upon which the automobiles were situated and, no doubt, in passing upon the advisability of assuming the risk by issuing the policy, took into consideration the comparative safety because of the situation of the levees, and that to that extent it was beneficial to the insurer to provide Coverage “F” for the respondent in this case.
For these reasons I believe that respondent is entitled to recover, and that the judgment of the trial court and the Court of Civil Appeals should be in all things affirmed.
Opinion delivered January 10, 1951.
Rehearing overruled February 28, 1951.