American General Ins. Co. v. Bell, 13743.

• Decision Date: 15 April 1938
• Docket Number: No. 13743.,13743.
• Citation: American General Ins. Co. v. Bell, 116 S.W.2d 877 (Tex. App. 1938)
• Parties: AMERICAN GENERAL INS. CO. v. BELL.
• Court: Texas Court of Appeals

Page 877

116 S.W.2d 877

AMERICAN GENERAL INS. CO. v. BELL.

No. 13743.

Court of Civil Appeals of Texas. Fort Worth.

April 15, 1938.

Rehearing Denied May 20, 1938.

Appeal from District Court, Tarrant County; A. J. Power, Judge.

Action by J. D. Bell against the American General Insurance Company to recover on a fire insurance policy issued by defendant. Judgment for plaintiff for $750, and defendant appeals.

Affirmed.

Thompson & Barwise and Fred Korth, all of Fort Worth, for appellant.

T. W. Dunn, Julien C. Hyer, and A. W. Christian, all of Fort Worth, for appellee.

SPEER, Justice.

Appellee, J. D. Bell, sued appellant, American General Insurance Company, in a district court of Tarrant county, Tex., on a fire insurance policy for $1,000, growing out of a loss by fire of household goods, located in the city of Fort Worth, in a building mentioned in the policy.

Appellee alleged the issuance by appellant of the policy covering his property, the payment of the premiums demanded, the destruction of his goods by fire during the effective life of the contract, the consequent obligation upon the part of appellant to pay, notice and proof of loss to appellant, as provided in the policy, acceptance by appellant of the notice and proof of loss, and in the alternative, a waiver and estoppel by it of such notice and proof, that none of the exceptions of liability set out in the contract existed, and failure and refusal to pay the loss.

Appellant answered with general demurrer and twenty-nine special exceptions, all of which were overruled by the court, of which no complaint is here made, and by general denial and special pleas in defense against its liability.

Because of the errors assigned by appellant, it will only be necessary to mention certain of its special defenses.

Appellant pleaded the entire policy and contract, which contained, among other things, a provision that the policy should be void: "If the interest of the insured in the property be other than unconditional and sole ownership * * * or if any change other than by death of an insured take place in the interest, title or possession of the subject of insurance." In this connection it alleged that subsequent to the issuance of the policy, the appellee sold and delivered the insured articles to Mr. and Mrs. Engert for a valuable consideration, and that a portion of the purchase price had been paid to appellee by the purchaser, prior to the date of the fire; that because of said sale, appellee was not the unconditional and sole owner of the property, as contemplated by the provisions of the contract above mentioned.

Another provision in the policy, relied upon by appellant, is that unless otherwise provided by agreements indorsed upon the policy, it should be void, "if the hazard be increased by any means within the control or knowledge of the insured." Allegations were made that at the date of the issuance of the policy, the building in which the insured goods were situated was occupied by appellee and his family, and that thereafter and prior to the fire, appellee leased the building and the insured household goods to one Engert, for both a place of residence and one in which to conduct a photograph business; that both the tenancy and character of the business carried on in said building increased and contributed to the fire hazard to said property, all of which was within the knowledge and control of appellee.

It was further alleged in defense of appellee's action, that he had not complied with the provisions of the policy in the matter of making proof of the loss, the substance of which provision is that in case of loss, the owner should protect the insured articles from further loss, as far as possible, make a complete inventory of same, stating the quality and cost of each article and the amount claimed thereon; should render to the company a statement thereof, signed and sworn to by him, stating the origin and time of the fire, his interest and that of any other person therein. It should contain the cash value of each item and the amount claimed as loss thereon. Other provisions set out are not material to a disposition of this appeal.

A jury trial was demanded, and verdict was rendered upon special issues submitted by the court; from the verdict, judgment was entered for appellee in the sum of $750. New trial was denied appellant and it perfected this appeal.

Appellant has presented the case upon a number of points or propositions, based on assignments of error shown. These propositions are in substance: (1) The undisputed evidence shows that appellee was not the sole and unconditional owner of the insured property when the fire occurred, but had sold the insured household goods to another and the latter was in possession under the sale; the court should have instructed a verdict in favor of appellant. (2) The court erred in permitting appellee to testify from a list made by him immediately after the fire as to the value of the goods to him, and that such values were the usual and customary prices charged in the locality of the fire at that time, and constituted the values of replacing the property with material of like kind and quality, and that the court erred in submitting an issue to the jury worded similar to that given in the testimony. (3) The appellant's request for peremptory instruction should have been given when the testimony disclosed the hazard had been increased with appellee's knowledge, by leasing the insured property, as well also by permitting the lessee to conduct a photograph business on the premises. (4) A mistrial should have been declared by the court for a conflict in the answers to special issues, wherein one answer found appellee had agreed to sell the insured goods and another party had agreed to buy, and another answer found appellee was the sole and unconditional owner of the insured goods at the time of their destruction.

We here quote the first special issue, because its wording is the basis of errors assigned. It reads: "Special Issue No. 1. What sum of money do you find from a preponderance of the evidence would have been the reasonable cost at the time of and immediately after the fire in question, of repairing and replacing the household furniture in question, with material of like kind and quality, making allowance for such depreciation as you shall find from a preponderance of the evidence that it had undergone, located at 4713 Pershing Avenue, Fort Worth, Texas, lost and damaged by the fire in question, if you find it was so lost and damaged?" By answers to other issues the jury found that W. J. Blount was the duly authorized agent of appellant; prior to filing suit Blount, for the appellant, had denied liability on the policy; appellee submitted to Blount proof of loss and he accepted same and made no objections thereto, and that his acts constituted a waiver by appellant of further proof; appellee notified appellant of his lease to Engert prior to the fire; appellant collected balance due on premiums after it had knowledge of the lease to Engert, and that by so doing, appellant waived any objections it may have had to the lease of the property; appellee knew of his lease to Engert and that Engert was conducting a photograph business there, and that both the lease and business conducted therein were increased hazards, but that neither contributed to the loss by fire; the keeping by Engert of photograph negatives in the house increased the fire hazard, but that appellee did not know such were kept therein; that Bell agreed to sell the furniture to Engert, and the latter agreed to buy it, but that the furniture was not put into Engert's possession, by reason thereof; that Bell (appellee) was the sole and unconditional owner of the furniture at the time it was burned.

Appellant insists by its first group of propositions that the policy of insurance was voided under the stipulations therein, because the "undisputed" evidence shows appellee was not the sole and unconditional owner of the insured property at the time of the fire, and that its request for an instructed verdict should have been granted. Many authorities are cited in support of its contention that such limitation of liability as contained in the contract is valid and, when proven to be true, will defeat liability.

No useful purpose could be served by us in setting out the testimony of the witnesses bearing upon the question of whether or not appellee had sold the furniture to the Engerts. Both Mr. and Mrs. Engert testified they had purchased it from appellee several months before the fire in October, 1935, and had paid for it. Appellee and his wife testified just as positively that no such sale was ever made; they said they had offered to sell the furniture to the Engerts for cash only, and the latter had said they wanted to buy,...