Anchor Cas. Co. v. Bowers

• Decision Date: 29 October 1964
• Docket Number: No. 14404,14404
• Citation: 385 S.W.2d 568
• Parties: ANCHOR CASUALTY COMPANY, Appellant, v. J. E. BOWERS, Appellee.
• Court: Texas Court of Appeals

Page 568

385 S.W.2d 568

ANCHOR CASUALTY COMPANY, Appellant, v. J. E. BOWERS, Appellee.

No. 14404.

Court of Civil Appeals of Texas, Houston.

Oct. 29, 1964.

On Rehearing Dec. 10, 1964.

Second Rehearing Denied Jan. 7, 1965.

Chilton Bryan and Julietta Jarvis, Houston, Bryan & Patton, Houston, of counsel, for appellant.

Howard M. Wayland, Houston, for appellee.

COLEMAN, Justice.

This is a suit on three fire insurance policies to recover for damages caused by fire to a dwelling and household furnishings. The case was tried to a jury and judgment was entered for the insured.

The three insurance policies made the basis of this suit were all issued by appellant. Each of these policies required that a sworn proof of loss be filed with the company within 91 days of the date of the loss. The fire occurred December 13, 1960. On February 8, 1961 appellee filed with the company a proof of loss on the house, and another on the furniture, which referred by number to only one of the policies. An affidavit was attached to the proof forms, but the space for the signature of the notary public was blank. On the 24th day of April, 1963, substantially similar proofs of loss, properly sworn to, were filed with the company. Appellant did not, within the 91 day period, call appellee's attention to his failure to have the proofs of loss properly notarized. Appellee did not plead waiver or estoppel.

The jury found that the dwelling was a total loss and this finding is properly supported by the evidence. No proof of loss is required as a condition to recover for a total loss of real property. Crutchfield v. St. Paul Fire and Marine Ins. Co., Tex.Civ.App.1957, 306 S.W.2d 948; Whitehead v. National Casualty Company, Tex.Civ.App.1954, 273 S.W.2d 678, error ref.; United States Fire Ins. Co. v. Adams, Tex.Civ.App.1938, 115 S.W.2d 788.

Where a proof of loss was filed for one policy, it is not necessary that additional proofs of loss be filed on other policies with the same company. Francis v. International Travelers' Ass'n, Tex.Civ.App., 260 S.W. 938. In any event, this point does not present reversible error since appellee's coverage under the policy referred to by number exceeds the value of the personalty destroyed as found by the jury.

Appellant contends that the trial court erred in failing to direct a verdict in its favor since the evidence shows without dispute that the proof of loss filed by appellee within the time limited by the policy was not sworn as required by the terms of the policy.

Numerous cases can be cited for the proposition that where an insurance policy makes the furnishing of a proof of loss a condition precedent to the enforcement of the policy, and the proof of loss has not been furnished or waived, the insured cannot recover on the policy. Farmer's Mutual Protective Ass'n of Texas v. Thompson, Tex.Civ.App., 365 S.W.2d 226, ref., n. r. e.

It has frequently been held, however, that substantial compliance with policy provisions requiring proof of loss is all the company may require, and that an unverified proof of loss, containing the required information, may be substantial compliance with the policy provisions. Home Ins. Co. v. Scott, Tex.Civ.App., 152 S.W.2d 413, writ dism.; Service Mutual Ins. Co. of Texas v. Territo, Tex.Civ.App., 147 S.W.2d 846; Century Ins. Co. Ltd. v. Hogan, Tex.Civ.App., 135 S.W.2d 224; Universal Automobile mobile Ins. Co. v. Morris Finance Corporation, Tex.Civ.App., 16 S.W.2d 360, writ dism.

In London & Lancashire Fire Ins. Co. v. Schwulst, Tex.Civ.App.1898, 46 S.W. 89, the court said: '* * * The rule is that, when defective proofs of loss are furnished the company, it must, within a reasonable time, object to the proofs, and point out the defects, so that the assured may, if he so desires, amend the same, and cure the defects.'

Rule 93, T.R.C.P., provides (in part): 'A pleading setting up any of the following matters, unless the truth of such matters appear of record, shall be verified by affidavit.

'(m) That notice and proof of loss or claim for damage has not been given as alleged. Unless such plea is filed such notice and proof shall be presumed and no evidence to the contrary shall be admitted. A denial of such notice or such proof shall be made specifically and with particularity.' (emphasis added)

The emphasized portion of the Rule requires that the specific defect to be relied on must be clearly and distinctly set out in the denial. Here appellant's plea stated: 'Defendant pleads that the Plaintiff failed to file an acceptable sworn Proof of Loss, containing therein all of the information required by the above quoted terms and conditions, within ninety-one days from the occurrence of the loss alleged. * * *' Instead of clearly and distinctly pointing out the defects in the proof of loss filed, this plea is global in its wording. It does not comply with the Rule and amounts to no plea. The presumption that a proper proof of loss had been filed arose and no evidence to the contrary could properly have been admitted. Home Ins. Co., New York v. Barbee, Tex.Civ.App., 166 S.W.2d 370.

The trial court did not err in refusing to instruct the jury to return a verdict for appellant.

The policies insuring appellee's personal property only insured the property while located in the particular premises described in the policies. The house that burned was not the one originally described in the policies, but appellee testified that the company had issued to him proper removal permits which were destroyed in the fire. Appellant produced testimony that when such permits were issued they were in the form of endorsements to the policy and were supposed to be attached to the policy; and that a copy of the endorsement ordinarily was kept by the agent issuing it and another sent to the company for its file. Mrs. Solomon, who was appellant's agent at the time of the fire, but not at the time of the trial, testified that she knew that appellee had moved to the premises destroyed by fire, but that she could not testify that a removal permit was issued because she did not have access to the records. An agent of the company testified at the trial, but neither party asked him whether an endorsement was in his files. There was no direct testimony that proper endorsements were not issued. The fire was reported to the company by Mrs. Solomon as having destroyed the house occupied by appellee prior to his removal to the house actually destroyed. She testified that she took the address from a file in her office. Since appellee testified that endorsements were issued each time he moved his residence, none of the evidence is necessarily inconsistent with his testimony that such a permit was issued at the time he moved into the house which burned. His testimony was positive and concerned a matter which appellant could have contradicted had it been untrue. The trial court was not required to submit an issue on the matter to the jury. Cochran v. Wool Growers Central Storage Co., 140 Tex. 184, 166 S.W.2d 904.

Appellant specifically pleaded no liability because the fire was an incendiary fire brought about by appellee for the purpose of defrauding the insurance company. At the proper time appellant requested the submission of certain issues, to secure findings on whether appellee burned the property; instigated the burning; procured some other person or persons to burn the property; or consented to the burning.

An arson investigator testified to circumstances which, in his opinion demonstrated that an inflammable liquid was a factor in the fire. A container having the odor of kerosene was found outside the house. He testified that deep charring indicated a hydrocarbon fire. There were, in his opinion, several different points of origin, where such deep charring was found. He testified that the fire was a 'set fire'.

Appellee had moved nine pick-up loads of furniture from the burned house at 13622 Almeda School Road to his house at Pasadena and was living there at the time of the fire. A normal driving time between the houses was twenty-five minutes, but he had driven it in sixteen minutes. Appellee's wife testified that appellee was at home from about ten o'clock until he was notified that the house was burning about 12:30 o'clock. The claim filed by appellee for lost personal property listed two bedroom suites, a dining room suite, a living room suite, a desk and chair, a rocking chair, a cedar chest, two chests, a coffee table, two end tables, and a kitchen range. The value claimed for this property was much greater than that found by the jury. Appellee testified that he had bought no other...