PENNELL v. UNITED INS. CO., Inc., 243 S.W.2d 572

SMEDLEY, Justice. Petitioner Paul Pennell, who was accidentally injured while driving a jeep in the performance of his duties as a rural mail carrier, filed this suit against respondent, Unitéd Insurance Company, Inc., to recover indemnity of $200 per month, alleging that the injury caused inability to perform each and every duty pertaining to his occupation.

The company by the terms of the policy agreed to pay $100 per month for total loss of time caused by accidental .injury and agreed further to pay double the monthly indemnity in the event of the insured’s injury “while driving or riding within any private passenger automobile exclusively of the pleasure car type”. The principal question in the case is as to the right of petitioner to recover the double indemnity.

The district court, after trial before a jury which found that the motor vehicle driven by petitioner was “a private passenger automobile exclusively of the pleasure car type”, rendered judgment for petitioner against respondent in the total s.um of $4964, which included double indemnity, attorney’s fees and penalty.

The Court of Civil Appeals, with Chief Justice Bond dissenting, reversed that judgment and rendered judgment that petitioner take nothing, holding that petitioner was not entitled to recover double indemnity and that respondent had paid petitioner the full [amount of the indemnity at the rate of $100 per month that was due when the suit was filed. 238 S.W.2d 602, 604.

The Court of Civil Appeals, after reviewing the evidence and a number of authorities, expressed the conclusion that the jeep is “an all-purpose car” and is “neither exclusively a pleasure car type automobile nor exclusively a freight-carrying type, but a combination of all”; and held “as a matter of law that the jeep involved here is not a private passenger automobile ‘exclusively of the pleasure car type’ and therefore not within the coverage of the double indemnity provision of the policy.” The substance of petitioner’s argument attacking the above quoted holding is that there is ambiguity in the policy’s description of the automobile to which the double indemnity provision applies, and that the Court of Civil Appeals has resolved the ambiguity in favor of the insurance company, contrary to the construction that respondent placed on the policy and contrary to the jury’s verdict.

In our opinion there is no ambiguity. The policy provides for double indemnity when injury is sustained by the insured “while driving or riding within any private passenger automobile exclusively of the pleasure car type”. The words are simple. We do not find, as petitioner contends, that the word “exclusively” causes the description to be ambiguous or that ambiguity arises from the “placement” of that word. “Exclusively” gives emphasis to the description as an automobile of the pleasure car type.

We believe the words clearly mean that the double indemnity provision applies only to automobiles that are constructed and intended to be used exclusively for pleasure, and does not apply to automobiles constructed and intended to-be used for freight carrying or agricultural 'or industrial purposes, and-does not apply to automobiles constructed and intended to-be used both for pleasure and for freight carrying or agricultural or industrial purposes. The jeep in which petitioner was riding when injured is described by him in his testimony as “just a Willys jeep, 4-wheel drive, cloth top”, with two seats.

By another witness it is referred to as a 1946 Willys Universal jeep. Two witnesses testified as to the design and construction of jeeps and the purposes for which they are sold and intended to be used. Their testimony is undisputed. No issue of fact is raised. The testimony discloses many important differences between the jeep and the ordinary pleasure type automobile. The testimony and the photographs of the jeep in the record show that it is a rugged, uncouth vehicle without beauty of line or body, with no suggestion of comfort, and obviously intended for hard service rather than for pleasure.

The jeep is not built like the ordinary passenger car. It is rougher and its seats are harder. The ordinary pleasure car has a two-wheel .drive and the jeep has a four-wheel drive. This gives the jeep more power and it is better on roads that are not hard surfaced and better in the mud than the ordinary vehicle. The jeep is equipped with nondirectional tires on which the gripping ribs run straight across the face of the tire and enable the vehicle to pull backward or forward. The seat on the jeep is thinner than the seat on the ordinary passenger car, and it has the minimum amount of springs.

The jeep has six forward speeds and it has a low, low gear for heavy duty pulling. It has two standard drive shafts which operate front and rear differentials as standard equipment, and has also places for two other shafts front and rear. These are for the purpose of operating front end or rear end winches or mowers, “or anything that requires power take-off to operate.” The ordinary passenger automobile does not have these. The tread of the jeep is narrower than the standard automobile tread. This gives more effective operation on muddy roads.

The jeep is made to pull in the mud and to pull on grades and inclines. It is useful in mountain areas- and will go where a wagon cannot follow. It has a distinct advantage for operation on icy roads, on rough roads or across country. The standard jeep is adapted to various industrial attachments as electric welders, compressors, ditch diggers, sprayers, fire equipment and pumps. Jeeps are sold, to farmers, rural electrical associations, oil companies and other industrial users, Petitioner used the jeep in the performance of his work as a rural mail carrier.

He had an extra seat that he put in the jeep on Saturday evenings and Sundays so that he and his family could use it for convenience, pleasure, to go to church and for social engagements. He testified that he owned another automobile at the time he was carrying the mail, first, a Chevrolet and later an Oldsmobile, and that after his injury he sold the jeep to his substitute carrier, who used it in carrying the mail.

There is testimony that jeeps can be used and often are used for various forms of pleasure, but this evidence does not change the fact, conclusively proved by the evidence which has been set out above, that jeeps are built and intended to be used and are used for other purposes than pleasure, as well as for pleasure, that the jeep is, as the Court of Civil Appeals expresses it, “an all-purpose car”.

We agree with that Court’s holding that “as a matter of law the jeep involved here is not a private passenger automobile ‘exclusively of the pleasure car type.’ ” No case has been cited and we have found none that classifies the jeep except Union Pacific R. Co. v. United States, 91 F.Supp. 762, 765, 117 Ct.Cl. 534. The committees of the railroads had classified the jeep for rate purposes as a passenger vehicle rather than a freight vehicle, and the War Department had declined to pay on that basis. The suit was by the railroad company for the difference in the two rates on shipments over its lines.

The court, after reviewing at length the history of the jeep and the use made of it during the war, held that the wartime jeep was primarily a passenger car and was correctly so classified for freight rate purposes. The opinion states that while the jeep was used for hauling and was “in many respects an all-purpose car”, there was evidence that it was used in the wár from eighty to eighty-five per cent, for personnel and reconnaissance. The decision is not an authority that the jeep is a passenger automobile exclusively of the pleasure car type. Spence v.

Washington National Insurance Co., 320 Ill.App. 149, 50 N.E.2d 128, 130, construed the words of an accident insurance policy, “private passenger type of automobile of the exclusively pleasure type”, substantially the same as those of the double indemnity provision of the policy in the instant case, as not applying to an ordinary standard model half-ton Ford pick-up truck, although the plaintiff contended that the truck was as to the insured a passenger type automobile of the exclusively pleasure type because she had proved that the insured used the truck for transporting persons whom he picked up on the highway and at church, and for transporting his family and others to church and other places.

The trial court’s judgment for the plaintiff was reversed and judgment was rendered for the defendant. Petitioner presents as closely in point a decision by the Supreme Court of Tennessee, Aetna Life Insurance Co. v. Bidwell, 241 S.W.2d 595, 596. The policy named an amount to be paid if the insured were accidentally killed “while — riding in — a private passenger automobile of the pleasure car type”, and the policy provided that the term “automobile” should not “include a motorcycle or any vehicle or mechanical device for aerial navigation”.

The insured was killed while riding on a pleasure trip in a one-half ton pick-up truck. Judgment for the beneficiary was affirmed. The decision was placed in part on the exclusion clause above quoted, and it is to be observed that the policy described the automobile as one “of the pleasure car type” and not as one “exclusively of the pleasure car type”, as here.

Decisions of the Iowa and the North Carolina courts hold that the same words of description as those construed in the Tennessee case discussed above, “private passenger automobile of the pleasure car type” do not include a Ford pick-up truck or a Ford one and one-half ton truck, although the truck may be used and is sometimes used for transporting passengers. Dirst v. Aetna Life Insurance Co., 232 Iowa 910, 5 N.W.2d 185; Lloyd v. Columbus Mutual Life Insurance Co., 200 N.C. 722, 158 S.E. 386. The decisions above discussed are not directly in point.

Three of them at least tend to support the conclusion of the Court of Civil Appeals, which we approve, and the other two, for the reasons stated, are not authority for a different conclusion. Respondent at first construed the double indemnity provision of the policy as applying to the jeep that petitioner was driving. It made six monthly payments to him of $200 each for disability from October 12, 1948 to April 12, 1949.

The payments were made by drafts, each bearing the statement that by the acceptance of the draft the claimant agreed that it was in full settlement of all indemnity to the date specified, the last being April 12, 1949. This construction of the double indemnity provision by the insurer would be material if the provision were ambiguous, but it is not material because, as we have held, there is no ambiguity. Richardson v. Hart, 143 Tex. 392, 395-396, 185 S.W.2d 563; Highland Farms Corp. v. Fidelity Trust Co., 125 Tex. 474, 481, 82 S.W.2d 627; Parrott v.

Brotherhood of Railroad Trainmen, Tex.Civ.App., 85 S.W.2d 306, 310, application for writ of error refused. We sustain the second point in petitioner’s application which complains of the failure of the Court of Civil Appeals to render judgment, or to affirm the trial court’s judgment, in his favor for the single indemnity payments that were delinquent when the suit was filed and when the judgment was rendered in the trial court.

The Court of Civil Appeals, in holding that nothing was due and unpaid on the agreement to pay $100 per month, applied to the payment of the monthly installments from May 12, 1949 to October 12, 1949, inclusive, one-half of each of the six payments of $200 per month that had been made by the drafts above described. Those payments to the extent of one-half of each of them were made under a mistake of law on the part of respondent as to its liability under the policy.

There is no suggestion in the record that there was a mistake of fact as to the kind of automobile in which petitioner was riding when injured or any other mistake of fact. The question whether the double indemnity provision of the policy applied to the jeep, the answer to which determined respondent’s liability or nonliability for double indemnity, was one ’ of law.

The settled general principle applicable here is that “as between individuals, money voluntarily paid on a claim of right, with full knowledge of all the facts, in the absence of fraud, duress, or compulsion, cannot be recovered back merely because the party at the time of payment was ignorant of or mistook the law as to his liability.” 40 Am.Jur. p. 856, Sec. 205. See also Gilliam v. Alford, 69 Tex. 267, 271, 6 S.W. 757; City of Houston v. Feeser, 76 Tex. 365, 13 S.W. 266; Pitts v. Elsler, 87 Tex. 347, 28 S.W. 518; Scott v. Slaughter, 35 Tex.Civ.App. 524, 80 S.W. 643, application for writ of error refused.

The opinions in some of the suits by lessees against lessors for recovery of bonus money paid for leases under the Relinquishment Act are cited by respondent as authority that the double indemnity payments were made by it under a mistake of fact. The question presented in those cases may be distinguished in several respects from the question here considered. And examination of the opinions reveals that the right of the lessee to recover of the lessor was sustained primarily on breach of warranty, indemnity or failure of consideration. See Navarro Oil Co. v.

Cross, 139 Tex. 272, 276, 162 S.W.2d 677; Stanolind Oil & Gas Co. v. Allison, Tex.Civ.App., 121 S.W.2d 480, 482, affirmed in 133 Tex. 540, 129 S.W.2d 267; Empire Gas & Fuel Co. v. State, Tex.Civ.App., 21 S.W.2d 376, 379, affirmed in 121 Tex. 138, 47 S.W.2d 265; Shell Petroleum Corp. v. Tippett, Tex.Civ.App., 103 S.W.2d 448, 452, application for writ of error refused.

Judgment should be rendered for petitioner against respondent for the amount of the monthly installments of $100 each from May 12, 1949 to March 12, 1950, inclusive, that is, for all installments due and unpaid at the time of the trial in district court, together with judgment for twelve per cent, penalty and reasonable attorney’s fees under

Article 4736 of the Revised Civil Statutes of 1925, Vernon’s Ann.Civ.St. art. 4736. Final disposition of the case would be made here but for what in our opinion was error on the part of the district court in overruling objections made by respondent to hypothetical questions propounded to witnesses who testified as to what in their opinions would be reasonable attorney’s fees.

The hypothetical questions stated as assumed facts: the nature of petitioner’s injury, the substance of the policy, including the double indemnity provision, the company’s payment of double indemnity for six months and its failure thereafter to make payments, that the policy runs for a maximum of five years, and that if the plaintiff is entitled to double indemnity the maximum recovery would be $200 per month from April 12, 1949 to October 12, 1953, or $100 per month for that period if he is entitled only to single indemnity.

The question as propounded to one of the witnesses asked the witness to assume that the plaintiff was required to employ an attorney to prosecute his claim under the policy for accrued benefits “and to establish a disability of total and permanent for a period of five years from the date of disability, which is the maximum recovered under the policy” ; and the question stated further that if the plaintiff is totally disabled he is entitled to at least one hundred dollars per month for five years. One of the witnesses testified that in his opinion $2500 or $3000 would be a reasonable, fee.

Each of the other two answered $2500. The objections made to the questions were: that elements and facts were stated in them that were not in evidence; that the standard laid down in the questions varied from the terms and provisions of the policy; that the questions assumed that two different amounts were in controversy; that the questions assumed the existence of conditions beyond’the scope of the policy; and that they assumed the right to recover monthly payments over a period of years in the future and in the past. The jury answered that $2500 would be a reasonable attorney’s fee.

The inclusion in the questions of the statements that the policy ran for a period of five years, that the plaintiff was required to employ an attorney to establish total and permanent disability for a period of five years, and that the plaintiff, if totally disabled, is entitled to monthly payments for five years, would reasonably cause the witnesses -to base their estimates of reasonable fees on a maximum recovery or a recovery for the maximum period of five years. The testimony of the witnesses on cross examination shows that they, or at least two of them, did thus base their estimates on a maximum recovery.

One of them testified that $2500 or $3000 would be a reasonable fee “if the amount involved reaches what you have stated to me in your hypothetical question”, and further that his answer was “predicated on the maximum.” Another of the witnesses testified that one of the elements considered in arriving at a reasonable attorney’s fee is what amount of money is involved, and further that in testifying to $2500 as a reasonable fee, he took into account “as stated in the question, that the amount involved, I figured, roughly between $6000 and $12000, depending on whether recovery was had for single indemnity or double indemnity.” And he testified that his “$2500.00 figure” was based on the “theory of anticipatory breach”.

The court should not have submitted, as it did over respondent’s objection, an issue as to permanent inability to work, there being in the policy no agreement to pay indemnity for permanent disability. The agreement in the policy is to pay monthly installments as long as inability to work continues, but not to exceed five years. The jury having found in effect that petitioner’s inability to work had continued until the time of the trial, there were six past due and unpaid monthly installments when the suit was filed and eleven at the time of the trial.

Both the trial petition and the trial amendment prayed for recovery of judgment for the amount due under the policy as alleged. There were no allegations of anticipatory breach. Petitioner in his brief states that the suit “was for installments already due under the policy; future installments were not sought.” Respondent has not repudiated the policy, but stands on it, contesting the right of petitioner to recover double indemnity and on the trial contesting petitioner’s allegations of inability to work.

In the suit as brought and under the circumstances stated, petitioner would not be entitled to recover installments not yet due. Sanders v. Aetna Life Insurance Co., 146 Tex. 169, 173, 205 S.W.2d 43, 173 A.L.R. 968; Universal Life & Accident Insurance Co. v. Sanders, 129 Tex. 344, 102 S.W.2d 405; New York Life Insurance Co. v. English, 96 Tex. 268, 72 S.W. 58. Since there could be no recovery of installments not yet due, they should not be taken into consideration in measuring attorney’s fees. New York Life Insurance Co. v. English, 96 Tex. 268, 274, 72 S.W. 58; State Life Insurance Co. v.

Atkins, Tex.Civ.App., 9 S.W.2d 290, 292. The trial court should have sustained respondent’s objections to the hypothetical questions to the extent of requiring the elimination of references to permanent disability, the maximum period of five years and the recovery of installments to October 12, 1953. The judgment to be rendered here for recovery of installments due at the time of the trial is without prejudice to the rights of either of the parties hereto concerning future installments. Great Southern Life Insurance Co. v. Johnson, Tex.Com.App., 25 S.W.2d 1093.

The judgments of the district court and the Court of Civil Appeals are reversed and judgment is here rendered for petitioner, Paul Pennell, against respondent, United Insurance Company, Inc., for $1100, together with $132 as twelve per cent, penalty, with interest on the total sum of $1232 from April 7, 1950 at six per cent, per annum. The issue as to attorney’s fees being severable, the cause is remanded to the district court for the trial of that issue. Texas Rules of Civil Procedure, rule 503. Trevino v. American National Insurance Co., 140 Tex. 500, 506, 168 S.W.2d 656.

Costs in the Court of Civil Appeals are taxed against petitioner and costs in this Court against respondent. HICKMAN, C. J., and SHARP, GRIFFIN and SMITH, JJ., dissenting.