American Cent. Ins. Co. v. Harrison, 2604.

• Decision Date: 17 October 1947
• Docket Number: No. 2604.,2604.
• Parties: AMERICAN CENT. INS. CO. v. HARRISON.
• Court: Texas Court of Appeals

205 S.W.2d 417

AMERICAN CENT. INS. CO. v. HARRISON.

No. 2604.

Court of Civil Appeals of Texas. Eastland.

October 17, 1947.

Rehearing Denied November 7, 1947.

Appeal from District Court, Stephens County; Floyd Jones, Judge.

Action by W. J. Harrison against American Central Insurance Company on fire insurance policy. From a judgment for plaintiff, the defendant appeals.

Judgment affirmed.

Bryan & Bryan, of Houston, for appellant.

Ben J. Dean and L. D. Hawkins, both of Breckenridge, for appellee.

GRISSOM, Chief Justice.

W. J. Harrison obtained an insurance policy from the American Central Insurance Company for $2,500 on a one-story metal roof building, constructed of metal, and used as a livestock auction barn. The barn burned and Harrison sued said Company for $2,500 and interest. Trial was to the court. Judgment was rendered for plaintiff for the face value of the policy with interest and the company has appealed.

Appellant contends the judgment should be reversed (1) because the wooden pens adjacent to the metal barn were as a matter of law, a part of said barn, and, since the wooden pens were not destroyed, the property covered by the policy was not a total loss. (2) And because, as a matter of law, appellee had two policies on the metal barn, one issued to George Harrison by Hanover Insurance Company in the sum of $4,000 and the policy sued on, and, therefore, appellant is entitled to a credit on the amount to be recovered by W. J. Harrison on account of the insurance collected by George Harrison from the Hanover Company.

Prior to issuance of the policy sued on to W. J. Harrison, George Harrison obtained from Hanover Insurance Company a fire insurance policy for $3,800 on the "building and pens", located on three acres of land out of the northwest corner of a certain 25 acre tract near Breckenridge, Texas, the building being described as a metal building occupied as a livestock auction barn. George Harrison's policy also insured the contents of the barn for $200. Thereafter, W. J. Harrison obtained this policy insuring him against loss by fire and containing a provision that the insurance applied "only on the property described and located as provided herein." The property insured for $2,500 for the benefit of W. J. Harrison was described in his policy as the one-story metal roof, metal building, occupied as an auction barn, and located on the south side of the Albany highway one and a half miles west of Breckenridge, Texas. Immediately following this description, on the face of the policy appellant's agent wrote with a typewriter as follows: "His brother has a policy of $4,000 on the same barn. They are partners."

There was testimony that George Harrison owned three acres of land at the place mentioned in the policies; that W. J. Harrison was an experienced builder and they agreed that George Harrison should furnish the material and W. J. Harrison the skill and labor to build an auction barn at said site which thereafter, together with the auction business to be there conducted, should be owned equally by said brothers.

The evidence shows, or tends to show, that the metal barn was a total loss. The court found that it was a total loss. See Security National Fire Insurance Company et al. v. Kifuri, 120 Tex. 77, 36 S.W.2d 147. The evidence tends to show that, used in connection with the business of selling livestock at auction at said barn by the Harrison Brothers, there were livestock pens adjacent to the sides of said barn with alleys formed by one side of the pens and one side of the barn through which cattle were driven to and from a metal auction ring located in the front of said barn, where livestock was sold; that from the alleys, cattle were driven through a chute into a metal ring within the barn. The metal ring was evidently partly surrounded by seats for those attending the auction. The auction ring and barn were constructed of metal, but the pens were made of wood. There is evidence tending to show that said brothers and their respective insurers intended to insure only the undivided interest of the brother named in said policies and that said policies were not intended for the benefit of the partnership.

"A partner who insures partnership property in his own name without any stipulation or understanding that the insurance is for the benefit of the firm or his co-partner, is presumed to have insured only his own interest in the property." 26 Corpus Juris 86, Sec. 83. See, also, 44 C.J.S., Insurance, § 308.

Appellant contends that the property insured could not, as a matter of law, be a total loss because the wooden cattle pens were not destroyed by fire. Stated differently, it says the pens were, as a matter of law, a part of the property insured. On the face of the policy issued to George Harrison, his interest in both the barn and pens were expressly covered by the Hanover policy. George Harrison had his interest in the barn and pens insured for $3,800. Appellant proved that he was paid $3,634.90. Whether the deduction was on account of the fact that the pens, which were expressly covered by his policy, were not completely destroyed is not shown. The policy sued on by W. J. Harrison makes no reference to pens. It is evident that the agent that issued the policy sued on knew of the existence of George Harrison's policy on the same barn; that George and W. J. Harrison were partners and George Harrison's policy was for the sum of $4,000. The property insured by W. J. Harrison was described only as a metal one-story auction barn with a metal roof. The statement that George Harrison had a policy on the same barn in the sum of $4,000 and that George and W. J. Harrison were partners was written into the face of the policy on a typewriter by the appellant's agent who issued the policy. See Camden Fire Ins. Ass'n v. Sutherland, Tex.Com.App., 284 S.W. 927.

With reference to whether, as appellant contends, the cattle pens "surrounded" the barn and were "attached" thereto, and, as a matter of law, became a part of the insured barn, we call attention to the following testimony by appellee:

"Q. All right, Mr. Harrison, what are the facts about the barns and pens, whether they were all one? A. No, they wasn't all one.

* * * * * *

"Q. * * * I asked you whether or not the pens were tied right into the barn. A. No, they were on different land.

* * * * * *

"Q. Well, what are the facts about that? A. Well, we had pens that tied into the metal ring, that went in under the barn where the audience could look down on the ring. They tied into the auction ring, but they didn't tie into the barn.

"Q. You had other fences that went right into the barn, didn't you. A. We didn't have any connected with the barn, as I told you. They were connected with the ring.

"Q. But the ring was inside the barn wasn't it. A. Yes, but the alley separated the pens from the barn, because the cattle went through this alley into the ring.

* * * * * *

"Q. The ring wasn't in the front of the building at all, was it. A. There wasn't any pens in front of the building."

The only possibly pertinent provision of the policy not previously mentioned relative to whether, as a matter of law, the wooden pens were a part of the metal barn described in...