The opinion
STEPHENSON, Justice
(concurring).
I concur in the majority opinion written by Chief Justice Dies. The well written dissent by Justice Keith compels this reply.
Justice Keith has performed his usual excellent job of stating principles of law but it is his application of those principles with which I differ. I agree that if the insurance policy before us is ambiguous, then the case must be remanded for proper pleadings and a new trial. However, I consider the problem before us to be simply one of construction. Frequently our courts are called upon to construe the terms of a written instrument even though the question of ambiguity has not been raised.
The term before us which we must construe is “actually in the employ of the Pol-icyowner.” We must assume this policy of insurance was written to insure somebody. Courts will not construe a contract to mean that the parties have agreed to act contrary to what common sense and the circumstances obviously demand. Stool v. J. C. Penney Company (5th Cir. 1968), 404 F.2d 562, 566 ; Fujimoto v. Rio Grande Pickle Company (5th Cir. 1969), 414 F.2d *183 648 , 6S4. We are required to give the insuring clause a common sense construction since we must assume that the parties intended to enter into an enforceable insurance contract. American Casualty & Life Co. v. Gueringer, supra majority opinion.
As said by Justice Keith in Parks v. Frankfurt, 476 S.W.2d 717, 721 (Tex.Civ.App., Beaumont, 1972, application for writ of error pending):
“It is always the primary duty of courts in construing written instruments to arrive at the intention of the parties. Skelly Oil Company v. Archer, 163 Tex.336, 356 S.W.2d 774 (1962); or, as was said in Fox v. Thoreson, 398 S.W.2d 88, 92 (Tex.Sup.1966): ‘Interpretation of a written instrument is always a quest for the intention of the parties to it.’
* * * * * *
“But, neither party claims that the contract is ambiguous, so the construction of the written instrument is a question of law for the court. Myers v. Gulf Coast Minerals Management Corp., 361 S.W.2d 193, 196 (Tex.Sup.1962); City of Pinehurst v. Spooner Addition Water Co., supra ([Tex.] 432 S.W.2d [515] at p. 519). And, as was said in Trinity Universal Ins. Co. v. Ponsford Brothers, 423 S.W.2d 571, 575 (Tex.Sup.1968), ‘A jury may not be called upon to construe the legal effect of an instrument.’ ”
The provisions of this insurance policy make it clear that they were not using the term “in the employ of” as the word “employee” is used in the Workmen’s Compensation Act and in Industrial Indemnity Exchange v. Southard, supra dissenting opinion. This is made certain because employees covered by workmen’s compensation insurance are expressly excluded. Inasmuch as there are only two known categories of persons performing work, employees and independent contractors, the contract before us must be construed to cover independent contractors.