Phœnix Assur. Co. v. Munger Imp. Cotton-Mach. Mfg. Co.

• Decision Date: 28 November 1898
• Citation: 49 S.W. 222
• Parties: PHŒNIX ASSUR. CO. OF LONDON v. MUNGER IMPROVED COTTON-MACH. MFG. CO.
• Court: Texas Supreme Court

49 S.W. 222

PHŒNIX ASSUR. CO. OF LONDON v. MUNGER IMPROVED COTTON-MACH. MFG. CO.

Supreme Court of Texas.

November 28, 1898.

Error to court of civil appeals of Fifth supreme judicial district.

Action by the Munger Improved Cotton-Machine Manufacturing Company against the Phœnix Assurance Company of London. From a judgment of the court of civil appeals (49 S. W. 271) affirming a judgment for plaintiff, defendant brings error. Affirmed.

Thompson & Wood, for plaintiff in error. Bell & Atwell and Coke & Coke, for defendant in error.

DENMAN, J.

This suit was brought and judgment recovered by defendants in error, as assignees of B. D. Atwell & Son, against the insurance company, upon insurance policy, and, judgment having been affirmed in the court of civil appeals, said company has brought the cause to this court upon writ of error. We will set out such portions of the application and policy as we deem pertinent to the questions we will discuss, and will omit such parts as are irrelevant thereto.

The application was, in substance:

"`I hereby make application to you to insure me against loss or damage by fire from noon Aug. 12, 1895, to noon Aug. 12, 1896, in amounts and on property as follows: [Here follows a list of various pieces of property upon which insurance was desired, the value of each piece, as well as the insurance wanted thereon, being stated separately, the same including a gin house and various parts of the machinery situated therein.] Said property located as per diagram on last page on land of B. D. Atwell, being in the town of Ferris, Ellis county, Texas. The values stated are the true cash values. I have carefully read the whole of "Notice to Applicant," printed on the following page of this application, and do make the warranties and accept the conditions therein expressed.'

"`To your questions following I answer as follows: [Then follows a number of questions in reference to machinery, such as its make, power of the engine and boiler, whether stationary or not, whether secondhand or not, cost, height of smokestack above peak of roof, when buildings were erected, their cost, etc.]

"Tank and Hose.—`Is there an elevated tank of 2,000 gallons capacity, and fifty feet of good hose, of not less than one and one-half inches in diameter? Ans. 2,500 tank. Hose and piping, 75 ft.'

"Incumbrance or Indebtedness.—1. `Is there any on above-described property, or on the land on which it stands? If so, (1) on what, (2) to whom, (3) in what amount, (4) when due? Ans. Owe Heatherington & Nason $800, Munger Mach. Co. $1,960, Adams Mach. Co. $550; ½ due this year, ½ due next year.'

"I herewith warrant and covenant the correctness and truth of each and every one of the foregoing answers and representations, and present them as the basis of the insurance hereby applied for; and I further warrant and covenant that the conditions existing at the time of the signing of this application, as set forth in my answers to the different questions, shall continue through the existence of any insurance to be issued thereon, or that of any insurance hereafter to be issued upon the faith of this application.

"[Signed] B. D. Atwell & Son, Applicant."

Under head of "Notice to Applicant," on the application, is the following writing:

"No liability will be assumed by Phœnix Assurance Company of London on any ginhouse risk, nor on any part of one, except upon each of the following warranties, by the assured, viz.:

"Ownership and Title.—That the assured is the sole and undisputed owner absolutely and in fee simple of the land on which buildings stand.

"Night Work Prohibited.—That he does not, and, without special permission in writing on the policy, will not, permit the gin to be operated at night.

"Water to be Kept.—That a barrel and two buckets, each always filled with water, shall be continuously kept within ten feet of each gin stand, and in same room therewith, to be used in case of fire.

"It will be a condition of every policy that in no case shall the company be held liable for loss or damage on any item in an account greater than three-fourths of the loss thereon, nor, in the event of other insurance, for more than its pro rata share of such three-fourths.

"This condition and each of these warranties will appear in every policy which the Phœnix Assurance Company of London will write on any gin-house risk, and no agent is authorized in any way to waive any of them, except that an agent may, in writing, grant permit for night work: provided that such permit shall show that proper extra premium has been paid therefor, and that lights shall be from animal or lard oil, in stationary closed lanterns, or approved system of incandescent electric light; and, provided further, that so much of the last warranty as relates to saw mill and cotton seed oil mill may be waived by special indorsement hereon in writing and payment of proper extra premium therefor."

The policy, as far as pertinent to the question before us, was as follows: "No. 4,188,414. $4,705. Phœnix Assurance Company of London, in consideration of the stipulations herein named, and of two hundred and fifty-eight seventy-eight one-hundredths dollars premium, does insure D. B. Atwell & Son, of Hutchins, Texas, for the term of one year from the 12th day of August, 1896, at noon, to the 12th day of August, 1896, at noon, against all direct loss or damage by fire, except as hereinafter provided, to an amount not exceeding $4,705, to the following described property, while located and contained as described herein, and not elsewhere, to wit. [Here follows the same list of property, values, and amount of insurance contained in the application.] Reference is hereby made to the application of the assured for this policy, which application is his warranty, and is hereby made a part of this contract. [Here follows a series of stipulations relating to the amount for which the company shall be liable, and how it shall be ascertained in case of loss.] But this policy is made upon the following additional warranties, stipulations, and agreements by which the insured, in accepting it, agrees further to become bound, viz.: The insured warrants that he is the sole and undisputed owner (except as to cotton held in trust) of the whole of said property, and of the land on which it stands; that, so far as he knows or believes, there are no threats nor any danger of incendiarism, and that he has no reason to suspect any; that the property has been profitable, and that he has every reason to believe...