Boatner v. Home Ins. Co.
| Decision Date | 12 April 1922 |
| Docket Number | (No. 288-3544.) |
| Citation | 239 S.W. 928 |
| Parties | BOATNER et al. v. HOME INS. CO. |
| Court | Texas Supreme Court |
Actions by R. H. Boatner and C. Weil against the Home Insurance Company. The actions were consolidated. Judgment for plaintiffs, and defendant appeals. From judgment of the Court of Civil Appeals (218 S. W. 1097) affirming a judgment in favor of plaintiff Weil and reversing and rendering a judgment in favor of plaintiff Boatner, plaintiff Boatner and defendant bring error. Application for writ filed by defendant dismissed, and judgment of the Court of Civil Appeals in so far as it affects plaintiff Boatner affirmed.
Atkinson & Atkinson, of Houston, and Kleberg, Stayton & North, of Corpus Christi, for plaintiffs in error.
Locke & Locke, of Dallas, for defendant in error.
R. H. Boatner was the owner of a store building and ironclad warehouse adjoining it, situated in Robstown, Nueces county, Tex. On September 2, 1915, the Home Insurance Company insured the property for one year against loss by fire for $2,000, apportioning the amount $1,800 on the building and $200 on the warehouse. The policy authorized total current insurance amounting to $4,000, apportioned $1,800 on the building, $2,000 on the stock, and $200 on the warehouse. On October 15, 1915, the Home Insurance Company issued a second policy to Boatner for $1,000, insuring for one year against loss by fire the store building and warehouse, the policy authorizing total current insurance of $5,000, apportioned $3,000 on the building and $2,000 on the stock. Each of the policies contained the following provision:
"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."
At the time these policies were issued there was a mechanic's lien upon the property in favor of Charles Weil. This lien was originally for the principal sum of $4,000, represented by five notes of $800 each, bearing 10 per cent. interest. Each of the policies was in favor of Boatner, and attached to each was a mortgage clause, making loss payable to Charles Weil as his interest might appear, and providing that the policy should not, except for the nonpayment of premiums, be subject to forfeiture as against the mortgagee for any failure on the part of Boatner to comply with its terms. The mortgage clause also contained the following stipulation:
"Whenever this company shall pay the mortgagee any sum for loss or damage under this policy and shall claim that, as to the mortgagor or owner, no liability therefor existed, this company shall, to the extent of such payment, be thereupon legally subrogated to all the rights of the party to whom such payment shall be made, under all securities held as collateral to the mortgage debt, or may at its option pay to the mortgagee the whole principal due or to grow due, on the mortgage, with interest and shall thereupon receive a full assignment and transfer of the mortgage and of all such other securities; but no subrogation shall impair the right of the mortgagee to recover the full amount of his claim."
The mortgage clause also contains a stipulation limiting the liability of the company in case of other insurance upon the property to such a proportion of the loss as the policy bore to the total insurance.
On April 20, 1916, Boatner procured from the Providence-Washington Insurance Company, without the knowledge or consent of the Home Company, a policy insuring the building and warehouse against loss by fire for one year for $1,000. On the night of May 3, 1916, the property covered by these policies of insurance was totally destroyed by fire.
Boatner and Weil brought two suits against the Home Company, one upon each policy. The Home Company resisted the suits in so far as Boatner was concerned, claiming that as to Boatner the entire policies were null and void by reason of the violation of the additional insurance clause above quoted. As to the plaintiff Weil the Home Company contended that it was not liable for more than the proportionate amount which the policies issued by it bore to the entire insurance, including the Providence-Washington policy. It also contended that it was only liable to Weil to the amount represented by Weil's debt at the time of the fire, plus interest thereon from that date at 6 per cent. per annum, and asked to be subrogated to the rights of Weil in case it should be adjudged to pay any of the mortgage debt. The two causes were consolidated. Before the trial Weil died, and Mrs. Weil, in her capacity as executrix of his will, was made a party plaintiff in the deceased's stead.
There was a trial before a jury, and a judgment upon directed verdict in favor of Weil for $3,412.67, and in favor of Boatner for $44.83. The amount of the judgment in favor of Weil was arrived at by calculating the entire amount of Weil's debt, principal and interest at 10 per cent. up to the date of judgment. The amount awarded Boatner was the difference between the amount of Weil's debt and interest calculated to the date of the fire and the total amount of the two policies.
The Home Company appealed to the Court of Civil Appeals, urging the same contentions that it urged in the trial court. Boatner and Mrs. Weil filed separate briefs in that court. In the Weil brief there was no objection made to the contention of the Home Company that it was entitled to be subrogated to the claim and security held by Weil against Boatner. Boatner, in addition to contending that the policy had not been avoided as to him, urged that the Home Company was not entitled to subrogation upon two grounds: First, that it had forfeited its right to subrogation by resisting the claim of Weil; and, second, because it had not paid Weil's claim. The Court of Civil Appeals affirmed the trial court's judgment in favor of Weil, and held the Home Company...
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Boatner v. Providence-Washington Ins. Co.
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