Ætna Ins. Co. v. Long

• Decision Date: 19 June 1934
• Docket Number: No. 1777-6268.,1777-6268.
• Citation: 72 S.W.2d 588
• Parties: ÆTNA INS. CO. OF HARTFORD, CONN., v. LONG.
• Court: Texas Supreme Court

72 S.W.2d 588

ÆTNA INS. CO. OF HARTFORD, CONN., v. LONG.

No. 1777-6268.

Commission of Appeals of Texas, Section A.

June 19, 1934.

Error to Court of Civil Appeals of Seventh Supreme Judicial District.

Suit by J. A. Long against Ætna Insurance Company of Hartford, Connecticut. Judgment for plaintiff was affirmed by the Court of Civil Appeals [47 S.W.(2d) 854], and defendant brings error.

Judgments of Court of Civil Appeals, and of district court reversed, and cause remanded to district court for a new trial.

Thompson, Knight, Baker & Harris and Pinkney Grissom, all of Dallas, for plaintiff in error.

Levens, McWhorter & Howard, of Lubbock, for defendant in error.

CRITZ, Commissioner.

This suit was filed in the district court of Lubbock county, Tex., by J. A. Long against Ætna Insurance Company, a corporation, to recover on a fire insurance policy in the sum of $1,000, covering a farm building. The district court rendered a default judgment for Long in the sum of $1,038.33. The judgment was rendered on May 26, 1931, and the judgment shows on its face that its amount was determined by adding 6 per cent. interest from October 2, 1930, to May 26, 1931, to the face of the policy. The insurance company appealed by writ of error to the Court of Civil Appeals. That court in all things affirmed the judgment of the district court. 47 S.W.(2d) 854. The insurance company brings error.

The record is before us without a statement of facts. We do not know whether the trial court heard evidence or not. We will presume from the wording of the judgment that he did so. In this connection the judgment recites: "This day the above entitled and numbered cause, wherein J. A. Long is plaintiff and Aetna Insurance Company of Hartford, Connecticut, is defendant, came on to be heard in its due order, and came the plaintiff by his attorneys and in person, and the defendant, although duly and legally cited in terms of law, came not but wholly made default; whereupon plaintiff having announced ready and a jury being waived, the matters in controversy as well of fact as of law were submitted to the Court, and the Court after having heard same is of the opinion that the plaintiff is justly entitled to a judgment against defendant for the sum of $1,000.00 with interest thereon from the 2nd day of October, 1930, at the rate of six per cent per annum."

We will treat the record as showing that the insurance company was duly cited. It therefore follows that the judgment against it, barring an item of interest we will later discuss, must stand unless Long's petition in the district court was subject to a general demurrer. In this connection we will presume that the facts adduced at the trial were in accordance with the allegations of this petition, but this being a direct appeal by writ of error we will presume no further.

The case was tried in the district court on Long's original petition. The petition has attached thereto, and made a part thereof, the insurance policy sued on. The insurance policy includes certain riders attached thereto, and made a part thereof. The petition in substance alleges that on or about May 18, 1928, J. A. Long was the owner of a certain farm dwelling house situated in Lubbock county, Tex.; that on that day the insurance company issued and delivered to Long its policy of fire insurance whereby it insured him against loss or damage by fire in the sum of $1,000 upon said dwelling house from May 18, 1928, to May 18, 1931; that as originally issued said policy contained a loss payable clause in favor of Federal Land Bank of Houston, Tex.; that thereafter said loss payable clause to Federal Land Bank was canceled and held for naught; that about February 18, 1930, there was indorsed on said policy a transfer thereof to one C. C. Bassant as the assured; that this was done because Bassant had become the owner of the farm dwelling house insured by said policy; that on February 2, 1930, there was attached to said policy and made a part thereof a mortgage clause in favor of Long, as is more fully shown by a copy thereof attached to the petition and made a part of the same, and marked "Exhibit C" for identification; that on or about October 2, 1930, while said policy was in force, the house covered thereby was totally destroyed by fire; that at the time said house was burned it was the property of C. C. Bassant, with a loss payable clause payable to Long; that Long performed all of the conditions of the policy after the fire, and more than sixty days before the commencement of the suit, gave the company due notice and proof of the fire and loss aforesaid, and demanded of the company the amount of the insurance, whereby the company became justly indebted to Long in the sum of $1,000, the face of the policy, with interest at 6 per cent. from October 2, 1930, which the company has failed and refused to pay, to Long's damage in the sum of $1,250. The prayer is for $1,000 damages, with interest and costs. The prayer also prays for general and equitable relief.

The rider or loss payable clause attached to the policy is made a part of the petition. So far as applicable here it reads as follows: "Loss or damage, if any, on building items under this policy shall be payable to J. A. Long as mortgagee (or trustee) as such interest may appear."

As already shown Long's petition in the district court alleges that the policy was transferred to Bassant because he had...