Phoenix Assur. Co. v. Allison

• Decision Date: 18 March 1895
• Citation: 30 S.W. 547
• Parties: PHOENIX ASSUR. CO. v. ALLISON et al.
• Court: Texas Supreme Court

30 S.W. 547

PHOENIX ASSUR. CO. v. ALLISON et al.

Supreme Court of Texas.

March 18, 1895.

Error to court of civil appeals, Third supreme judicial district.

Action by Allison, Bailey & Co. against the Phoenix Assurance Company on a fire insurance policy. A judgment for plaintiffs was reversed by the court of civil appeals (27 S. W. 894), and plaintiffs bring error. Reversed.

J. W. Parker, for plaintiffs in error. Leake, Shepard & Miller, for defendant in error.

BROWN, J.

For the purpose of deciding the question presented, the following is a sufficient statement of the case: The plaintiffs in error and S. N. Allison constituted a copartnership for the purpose of carrying on a gin business under the firm name of Allison, Bailey & Co. The firm bought machinery from the Keating Implement Company, of Dallas, to the amount of $2,900, and executed two firm notes, each for $1,450, payable, one December 1, 1888, and the other December 1, 1889. The machinery was placed in a house owned by the firm, situated on land belonging to, and the homestead of, S. N. Allison. The two notes to the Keating Implement Company were secured by a chattel mortgage upon the machinery. After the notes were given, S. N. Allison purchased the machinery and the house from the other members of the firm, and agreed to pay the debts of the firm, including the Keating Implement Company debt. By agreement at the time of the sale of the machinery the plaintiffs were to have a lien upon the machinery and buildings to secure their liability on the Keating Implement Company debt, and it was agreed that the property should be insured for the purpose of securing that debt. S. N. Allison procured the defendant in error to issue a policy for $1,500 on the machinery and buildings, payable to Allison, Bailey & Co., explaining the condition of the property to the agent. S. N. Allison paid the premium. The property insured was destroyed by fire, and notice given, and proof of loss forwarded in due time. After the destruction of the property, S. N. Allison paid the debt to the Keating Implement Company to secure which the policy was procured. The assurance company refused to pay the policy, and suit was instituted in the district court in the names of the assured, Allison, Bailey & Co., and judgment was rendered for the plaintiffs below. The court of civil appeals reversed the judgment of the district court, and rendered judgment for the defendant. The defendant in error, appellant in the court of civil appeals, presented a number of assignments, all of which except one involved questions of fact, upon which there was conflict in the evidence, and we therefore cannot examine them. The defendant in error presents by its first assignment of error in the court of civil appeals the proposition of law that the payment of the debt due from Allison, Bailey & Co. to the Keating Implement Company after the fire discharged the assurance company from liability on the policy. The proposition seems to be based upon the conclusion drawn from the evidence by the counsel that the policy was procured by Allison, Bailey & Co. for their own benefit, but the conclusions of the court of civil appeals do not sustain this proposition of fact, and the law as asserted by the defendant in error is not applicable to the facts of this case. Under the facts found by the court of civil appeals, when S. N. Allison paid the debt due the Keating Implement Company, he was subrogated to the rights of Allison, Bailey & Co. in the policy of insurance. Sheld. Subr. § 235. The court of civil appeals correctly held that S. N....