Fire Ass'n of Philadelphia v. Strayhorn

• Decision Date: 21 March 1914
• Citation: 165 S.W. 901
• Parties: FIRE ASS'N OF PHILADELPHIA v. STRAYHORN.
• Court: Texas Court of Appeals

165 S.W. 901

FIRE ASS'N OF PHILADELPHIA v. STRAYHORN.

Court of Civil Appeals of Texas. Amarillo.

March 21, 1914.

Rehearing Denied April 18, 1914.

Appeal from District Court, Scurry County; Jno. B. Thomas, Judge.

Action by Joe Strayhorn against the Fire Association of Philadelphia. From a judgment for plaintiff, defendant appeals. Affirmed.

Crane & Crane, of Dallas, for appellant. Beall & Beall, of Sweetwater, and Perkins & Perkins, of Snyder, for appellee.

HUFF, C. J.

The appellee, Joe Strayhorn, sued the appellant, the Fire Association of Philadelphia, on a fire insurance policy, alleging that appellant insured him from loss by fire, not to exceed $4,500, on his gravel-roof, concrete building located on lot 2, block 3, in the Blankenship addition to the town of Snyder, and alleged the destruction of the building by fire on the 19th day of December, 1911.

The appellant, by answer, replied: That it agreed to insure the appellee against all direct loss by fire to his one-story gravel-roof, concrete building and the ironclad warehouse adjoining on the side and the rear thereof; the same being located 117.21, 117.21, rear 113.17 on the north side of West street, in block No. 3 in Blankenship addition to the town of Snyder, subject to certain conditions and warranties contained in the policy, which is as follows: "This entire policy unless otherwise provided by agreement and indorsed hereon, or added hereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance, whether valid or not, on property covered in the whole or in part by this policy." That, under the terms of the policy sued on, appellee was authorized to procure other additional insurance on the property in an amount not to exceed $3,500. That the policy was void because appellee had procured additional insurance, covering in whole or in part the property described in the policy in excess of the amount authorized. And appellant further denied by allegation that the building was a total loss. By supplemental petition appellee alleged that it was untrue that he had taken out additional concurrent insurance upon the concrete building described in his original petition in excess of the amount as provided in the policy, and that in that connection, if appellant contended that the policy sued on covered other of appellee's property than that of the concrete building, appellant's local agent, in writing said policy, had no agreement, authority, or instructions from appellee to so incorporate any building other than the concrete building in the policy, and that he had no knowledge whatever of any other building being included at the time of writing the policy or subsequent thereto; that, prior to writing the policy in question, the local agent of appellant had been writing appellee's policies on the concrete building to keep the policies renewed thereon, which was the only instructions he had given to such agents, and, if the policy included other property than the concrete building, then the act in so including such property was a fraud on appellee's understanding, instructions, and rights. He set out fully the reason for his failure to discover the additional property in the policy, and asked, if it should develop that the ironclad buildings were so included in the policy, then that the policy sued on be reformed and amended so as to cover the concrete building alone, according to the agreement, understanding and instructions given to the local agents of appellant.

By supplemental answer, appellant excepted specially to the supplemental petition of appellee to reform the policy on the ground that said allegations were not in replication of any matter that could be pleaded in his supplemental petition. This exception was overruled by the trial court.

The facts show that appellant issued the policy described in appellee's petition covering the property described therein, and that the building was burned on the 19th of December, 1911. The building was a one-story concrete building of the kind called slush wall building; the walls were some 21 or 22 feet high, and plastered on the inside, and had a double deck about one-third of the building. It had a plank flooring, and the double deck also had a plank flooring. From the ceiling up to the top it was well built and braced for the purpose of carrying a tar and gravel roof, or a heavy roof; that there were two lines of stringers across, one for the ceiling and one for the roof to lie on, and it sloped back towards the north or the rear. There were two rows of posts through the building to hold up the roof. At the time the fire occurred, it was occupied by a stock of merchandise, consisting of wagons, buggies, etc. All the stock inside was consumed in the fire.

The appellee's testimony is to the effect that he found the walls were decaying rapidly, caused by the fire. That immediately after the fire the walls had begun to slough off, and that they had a number of cracks in them, and that they did not have one before the fire. The east wall had three cracks in it that it did not have before, and that it was out of line a good deal more than it was before the fire. It was shown that this wall, when the building was constructed, was built out of line and a little bit crooked. Each of the walls were 11 inches thick. The south front wall fell to the ground. There were some cracks in the west wall. The north wall was badly cracked. There were no openings in the said wall except some small openings about 10 or 12 inches near the top of the walls. The walls were made out of gravel and concrete. After the fire, the witnesses for appellee state that the texture of those walls, especially inside, was very soft and sloughed off and was rotten. The walls were of solid concrete; were not hollow blocks. The testimony offered by appellee was to the effect that no part of the wall left standing could be utilized in rebuilding or as a basis to rebuild.

The appellant offered one witness, who gave his experience as a contractor and builder and knowledge of such matters, as well as the effect of fire on walls of this character. He testified that he, at the instance of the insurance company, went over the remains of the building and measured the walls and took an inventory of what he considered damaged and would be called a total loss and what might be used to build back again; that he found the front or south wall collapsed and fallen into the street; that the rear wall was in bad shape around where the window openings had been; that in his opinion the north or rear wall ought to come down; that, as to the west wall, the inside plaster was intact on about half of the wall; that the exterior of this wall had the finish coat of cement and was in good shape up to those little diamond-shaped windows in the wall; that in general over that west wall the plaster had not come off. He found that on the inside surface of the west wall the sand and cement had come apart and had disintegrated, some to a slight depth and scaled off on the surface, he should say not over an inch in depth in any place, and in many places not at all; that up to a height of 12 feet, or up to the bottom of those little diamond-shaped windows, the west wall was true, straight, and clean; that the east wall had a cement coat on the outside, and is as nice and clean a wall as he ever saw; that the cement work is not even cracked and is in good condition; that about the windows it leans out a little, and he would recommend taking it down to the bottom of those little diamond-shaped windows, which were about 12 feet from the ground. He further stated that he noticed on the outside of the wall a perpendicular crack through the outer side of the cement, but this crack did not run through the wall; that there were no cracks through the wall; that on the inside of the wall he noticed three small perpendicular cracks; that these three cracks that he found on the inside of the wall did not appear on the outside; that there is one small crack in the west wall, but it does not go through the wall at all; that he made the measurement of the height of the walls and found them to be 21 or 22 feet from the ground. He further stated that he had examined the walls on the morning that he testified, and that they were just the same then as they were when he was there on the first trip. The witness stated in his opinion that the north and south walls in the building should not be utilized in rebuilding, but that the east and west walls could be used up to a certain height of some 8, 10, or 12 feet. The testimony is conflicting as to whether or not the east and west walls could be used as a basis for rebuilding and in placing the building back in the condition it was before the fire.

The first question presented for our consideration is appellee's motion to strike out the bills of exception filed in this case. By agreement of the parties hereto, the appellee's motion to strike out the bills of exception was submitted to be considered with the main case upon the merits of the appeal. The district court, in which the case was tried, convened September 5th and adjourned September 24, 1913. In the order overruling the motion for new trial, exception was taken to the action of the court, and notice of appeal was given and noted in the order. The following order was also added: "It is further ordered that the parties hereto do have 60 days from and after adjournment of this term of the court within which to prepare and file statements of facts and bills of exception." It is asserted that such order is without authority of law in that there was no good cause shown granting 60 days in which to file bills of exception. The act of the Legislature in question is as follows: "When an appeal is taken from the judgment rendered in any district or county court, the parties to the suit shall be entitled to, and they are hereby granted, 30 days...