The opinion
ON MOTION FOR REHEARING
SHARPE, Justice
(concurring).
In view of the argument made by appellants in their original brief and reiterated on their motion for rehearing, it seems appropriate to me to discuss further the context in which we must now consider the decision of our Supreme Court in Transport Insurance Company v. Standard Oil Company of Texas, 161 Tex. 93 , 337 S.W.2d 284 (1960).
Shortly after it was handed down, the decision in Transport was criticized in a note authored by Bruce M. Harrington appearing in 39 Tex.L.Rev. 115. The final paragraph of that note reads as follows:
“Even without the severability clause, as the standard policy existed prior to 1955, the holding of the court in the instant case would be doubtful. Since an employer-employee relationship is the basis of the exclusion, it may be that the existence of that relationship, in itself, should be decisive in determining whether the exclusion is to apply. However, the question presented in the instant case is important not only because of the precise point itself, but because of its applicability to the broader subject of coverage in claims among the various insureds. The restricted effect allowed the severa-bility clause could deny coverage in numerous situations where it was apparently intended to extend. It is to be hoped that in future cases the Texas Supreme Court will reconsider its holding, limit its application, and perhaps more clearly define what effect the severability clause is to have.”
The majority opinion in Transport placed considerable weight on American Fidelity and Casualty Company v. St. Paul-Mercury Indemnity Co. (5 Cir. 1957), 248 F.2d 509 , opinion by Judge R. Brown. However, almost three years after Transport Judge Brown authored a concurring opinion in American Agric. Chem. Co. v. Tampa Armature Works (5 Cir. 1963), 315 F.2d 856 , which casts considerable light upon the meaning of St. Paul and its possible effect on Transport. In particular, Judge Brown expressly agreed with the dissenting opinion of Justice Walker in Transport. In footnote 9 of Judge Brown’s concurring opinion the following appears:
“9. Oddly enough, in the illustration of a uniform, simple insurance clause which I have discussed, Who Is “The Insured” ’, Risjord and Austin, 24 University of Kansas City L.Rev. 65 (1955), undertaking as it did to demonstrate that the new ‘Severability of Interests’ clause was really unnecessary to express the underwriters’ intention as recognized by court decision may have become a part *353 of the problem. Some of its judicial statistics were questioned in American Fidelity & Casualty Co. v. St. Paul Mercury Indemnity Co., 5 Cir., 1957, 248 F.2d 509, 514, note 9 . This may have led the Texas Supreme Court into its holding in Transport Insurance Co. v. Standard Oil Co. of Texas, 1959, 161 Tex. 93 , 337 S.W.2d 284, at 289 . This result occurred even though Justice Walker pointed out, correctly I believe, that the severability clause was present in the Texas case, but not in our prior American Fidelity-St. Paul case. In the tortuous course of this problem, it may be that in divining intention as Alabama sees it, we transmuted McDowell v. United States Fidelity & Guaranty Co., 1954, 260 Ala. 412 , 71 So.2d 64 , from a simple cross-employee exception case of dubious relevance into the legendary white horse case when the Alabama Supreme Court three years later decided Michigan Mutual Liability Co. v. Carroll, 1961, 271 Ala. 404 , 123 So.2d 920 . All of this is developed in ‘Who Is “The Insured” Revisited’ Risjord and Austin, XXVIII Ins. Counsel J. 100 (1961); Brown and Risjord ‘Loading and Unloading; The Conflict Between Fortuitous Adversaries,’ XXIX Ins. Counsel J. 197; see also XXVIII Ins. Counsel J. 576-584 (1961).”
The colloquy referred to in Brown and Risjord “Loading and Unloading; The Conflict Between Fortuitous Adversaries,” XXIX Insurance Counsel J. 197 (1962), particularly throws additional light on the decisions in Transport and St. Paul.
I agree with appellants that the above-mentioned developments have clouded the holdings and effect of Transport. However, it appears to me that if its holdings are to be reconsidered or clarified such matters would be for the Supreme Court. If I were free to decide the questions here presented as a matter of first impression, I would agree with the views expressed by Justice Walker in his dissenting opinion in Transport. However, in my view, the holdings and language of the majority opinion in Transport are sufficient to require af-firmance of the judgment of the trial court here and I feel compelled to concur in that action.