Ætna Ins. Co. v. Jackson
| Decision Date | 16 March 1926 |
| Docket Number | (No. 1351.) |
| Citation | 282 S.W. 656 |
| Parties | ÆTNA INS. CO. et al. v. JACKSON.<SMALL><SUP>*</SUP></SMALL> |
| Court | Texas Court of Appeals |
Suit by Dr. J. N. Jackson against the Ætna Insurance Company and others. Judgment for plaintiff, and defendants bring error. Judgment reversed as to defendant named and defendant Superior Insurance Company, and rendered; affirmed as to defendant Northwestern Fire & Marine Insurance Company.
Thompson, Knight, Baker & Harris, of Dallas, for plaintiffs in error.
Dycus & Shivers, of Port Arthur, for defendant in error.
O'QUINN, J.
This suit was instituted by defendant in error against the plaintiffs in error, the Ætna Insurance Company, the Superior Insurance Company, and the Northwestern Fire & Marine Insurance Company, to recover on fire insurance policies issued by them. Dr. Jackson, defendant in error, was the owner of a dwelling house situated in the city of Port Arthur, Tex. On September 6, 1923, the Ætna Insurance Company insured the house for three years against loss by fire in the sum of $2,500. On March 14, 1924, the Superior Insurance Company (denominated by defendant in error as the Western Insurance Underwriters) issued its policy in the sum of $2,000 on the household goods of Dr. Jackson, situated in his said house, for three years. On April 30, 1924, the Northwestern Fire & Marine Insurance Company issued its policy to Dr. Jackson insuring him against loss by fire in the sum of $2,500 on the house and $2,000 on the household goods, for the period of one year. On May 5, 1924, the house was burned, and Dr. Jackson brought these suits against the several companies to recover on said policies. The suits were consolidated and tried as one.
The Ætna Insurance Company answered that its policy required written sworn proof of loss within 91 days, and that nothing should be due until 60 days after proof of loss, and alleged that no proof of loss had been made, and therefore the suit was prematurely brought, and asked that the suit be abated. Subject to its plea in abatement, it answered by general demurrer, general denial, and specially the matters contained in its plea in abatement, and further pleaded that defendant in error had obtained other insurance on the property insured, in violation of the terms of its policy, which contained a stipulation against further insurance without the consent of the plaintiff in error.
The Superior Insurance Company answered in identical terms with that of the Ætna Insurance Company, setting up the identical defenses set up by that company.
The Northwestern Fire & Marine Insurance Company answered, pleading the provision of its policy that required proof of loss within 91 days after loss, and that nothing should be due under the policy until 60 days after proof of loss was made, and alleged that such proof had never been made, and asked that the suit be abated because prematurely brought, and subject to this plea in abatement answered by general demurrer, general denial, and specially pleaded the provisions of the policy with reference to making proof of loss and time of payment, and other pleas which it is not deemed necessary to set out.
The case was tried to a jury upon the following special issues:
"(1) Was the building situated at 528 De Queen boulevard, Port Arthur, Tex., a total loss as a result of the fire on May 5, 1924?" To which the jury answered: "Yes."
"(2) What amount of money, if any, would it have cost immediately following the fire on May 5, 1924, to have repaired and replaced with material of like kind and quality, the damage done by fire, as distinguished from the damages, if any, caused by explosion, to household and kitchen furniture, wearing apparel, etc., which were contained in the building at 528 De Queen boulevard, Port Arthur, Tex., on May 5, 1924?" To which the jury answered: "$6,000."
"(3) What amount of money, if any, would it cost immediately following the fire, May 5, 1924, to have repaired and replaced with material of like kind and quality the damage done by fire, as distinguished from the damage, if any, caused by explosion, to the building situated at 528 De Queen boulevard, Port Arthur, Tex.?" To which the jury answered: "$4,200."
"(4) Did the adjuster for the Northwestern Fire & Marine Insurance Company, after May 5, 1924, advise plaintiff that the papers plaintiff made up or had made up were satisfactory as a proof of loss?" To which the jury answered: "Yes."
Special Issue No. 4 requested by plaintiff: "Did Mr. Cook tell Dr. Jackson that no further proof of loss was necessary?" To which the jury answered: "Yes."
Special Issue No. 5 requested by plaintiff: "Did Mr. Rothschild request Mr. Cook to bring him the proof of loss?" To which the jury answered: "Yes."
Upon the answers of the jury, the court rendered judgment in favor of defendant in error against plaintiff in error Ætna Insurance Company for $2,100, and against the Superior Insurance Company for $2,000, and against the Northwestern Fire & Marine Insurance Company for $4,100, that being $2,100 on the house and $2,000 on the furniture. Plaintiffs in error filed motions for new trial, which were overruled, and the case is before us for review upon a writ of error, each of the defendants in the court below assigning errors and presenting briefs.
As the plaintiffs in error Ætna Insurance Company and Superior Insurance Company present the same questions and have filed a brief in common, we will first consider their appeal.
At the conclusion of the evidence each of these plaintiffs in error presented a special requested charge instructing the jury to return a verdict for them, on the ground that the undisputed evidence showed that its policy became avoided by the defendant in error procuring additional insurance on the property insured, without its knowledge or consent, and was so avoided at the time of the fire, which special charge was refused by the court. All the assignments of these plaintiffs in error present this question as error, in different forms.
The Ætna insurance policy and the Superior insurance policy each contained the following clause:
"This entire policy, unless otherwise provided by agreement 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 whole or in part by this policy."
The total concurrent insurance on the house insured as shown by the Ætna policy was:
"Total concurrent insurance permitted, including this policy, $2,500 as follows: $2,500 on dwelling."
No subsequent agreement to other insurance on the house was shown...
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