Boatner v. Providence-Washington Ins. Co.

• Citation: 241 S.W. 136
• Decision Date: 24 May 1922
• Docket Number: (No. 298-3604.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: BOATNER v. PROVIDENCE-WASHINGTON INS. CO.
• Court: Texas Supreme Court

241 S.W. 136

BOATNER v. PROVIDENCE-WASHINGTON INS. CO.

(No. 298-3604.)^*

Commission of Appeals of Texas, Section B.

May 24, 1922.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Suit by R. H. Boatner against the Providence-Washington Insurance Company and others. From judgment of the Court of Civil Appeals (225 S. W. 1115) reversing judgment for plaintiff, plaintiff brings error. Affirmed.

Kleburg, Stayton & North, of Corpus Christi, and Atkinson & Atkinson, of Houston, for plaintiff in error.

S. A. Early, of Corpus Christi, and Locke & Locke, of Dallas, for defendants in error.

POWELL, J.

In 1915 and 1916 R. H. Boatner was engaged in the mercantile business in the town of Robstown, Tex., and occupied his own store building and adjoining warehouse. He finally acquired a total fire insurance protection amounting to $11,250. In 1915 he secured two policies in the Home Insurance Company on the building, said policies aggregating $3,000. This insurance was payable, as per rider indorsed thereon, to the party who had built his store. These two policies were in litigation, and the opinion of the Court of Civil Appeals at San Antonio in that case can be found in Home Ins. Co., v. Boatner (Tex. Civ. App.) 218 S. W. 1097. The judgment of the Court of Civil Appeals was affirmed by the Supreme Court recently upon recommendation of this section of the Commission of Appeals. 239 S. W. 928.

The facts just above given are presented for the purpose of clearing up the situation and to show that the policies aforesaid on the building are entirely separate from the policies involved in the case at bar.

Coming now to the four policies of insurance which are involved in the instant case, we find he procured them as follows:

(1) On May 24, 1915, a one-year policy in the Providence-Washington Insurance Company for $1,000 on stock of merchandise. In that policy no concurrent insurance was allowed.

(2) On April 19, 1916, a one-year policy in the Home Insurance Company for $3,000 on stock of merchandise. This policy allowed a total of $4,000 as insurance on the stock.

(3) On April 20, 1916, a one-year policy in the Providence-Washington Insurance Company for $2,500 on the stock of merchandise and $750 on store fixtures. This policy permitted a total insurance of $3,500 on the stock of goods and $750 on the furniture and fixtures in the building.

(4) On April 20, 1916, a one-year policy in the Providence-Washington Insurance Company for $1,000 on the store building. This policy permitted a total of $4,000 insurance on the building.

About midnight on May 3, 1916, the store and stock were completely destroyed by fire. At that time, as shown above, he had a total of $4,000 of insurance on his building, $750 on his fixtures, and $6,500 on his stock of goods. It will be remembered that this last-named amount is just $3,000 more than the Providence-Washington Insurance Company permitted him to carry, and $2,500 more than the Home Insurance Company allowed him to procure.

Boatner, in due course after the fire, presented his claim to each of said insurance companies, seeking payment on all four policies involved in this suit. Payment being refused by the companies, he filed four separate suits in the district court of Nueces county. Two were commenced on August 17, 1916, and the other two were begun four days later. They were all filed almost as soon as they could be instituted under the terms of the policies.

When the cases were called for trial, counsel for Boatner made formal motion that the three cases against the Providence-Washington Insurance Company be consolidated. There was no objection on the part of defendant company, and the consolidation was ordered. Following that there was an agreement that the consolidated Providence-Washington cases and the one against the Home Insurance Company be tried together as one case, before the same jury, under the same charge of the court, upon the same facts and under the pleadings in each case; that there should be but one transcript and one statement of facts upon appeal. Full faith was accorded said agreement in the trial court and Court of Civil Appeals. The trial judge referred to the cases as "this cause" in charging the jury. We shall give the same faith and credit to the agreement here, and consider, as affecting either of the companies, all the pleadings and facts shown in the transcript and statement of facts before us, just as did the Court of Civil Appeals. The attorneys for all parties had the right to rely upon this agreement and were not required to introduce any facts or pleadings twice. The agreement was made in the interest of economy of time and expense, and, in its practical effect and working in both the trial court and the Court of Civil Appeals, the result was the same as if there had been entered a formal order consolidating the Home Insurance case with the other consolidated cases. The agreement in the transcript so shows.

The allegations in the various petitions were typical of their kind in a suit for recovery on a fire insurance policy. It is not necessary to go into the pleadings of any of the parties except to say that the insurance companies pleaded, except in the one case hereinafter mentioned, that Boatner was precluded from any recovery on the policies because of a breach of the following provision contained in each of the policies, to wit:

"This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the assured 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."

The answer of the defendant company in the one case excepted above was merely a general demurrer and a general denial. This answer was to the petition seeking recovery upon the $1,000 policy issued by the Providence-Washington Insurance Company on the store building.

The attorneys for Boatner, by exception and answer in all the contested cases, pleaded that above provision of the policy was precluded and rendered nugatory in these cases by article 4874a of Vernon's Sayles' Revised Statutes of Texas of 1914, commonly known as the "anti-technicality statute." The trial court adopted this contention of counsel for Boatner and decided that the companies were liable, so far as the provision of the policies above quoted was concerned. He decided this question himself and did not submit it to the jury. The trial was before a jury on special issues, but the court submitted only three such issues. In response to these questions, the jury found that Boatner had substantially complied with the "iron-safe clause" contained in the policies; that the value of the stock of merchandise was $6,500; that the value of the office furniture and fixtures was $1,050.

At the conclusion of the evidence, counsel for the insurance companies requested peremptory instructions in favor of the latter upon all policies in suit, save and except the one issued for $1,000 on the building by the Providence-Washington Company. As to the latter, counsel admitted liability at the conclusion of the testimony. The court refused these peremptory instructions so requested by the companies.

Upon the findings of the jury, his own construction of article 4874a of the statutes aforesaid, and the undisputed facts, the trial court entered, upon proper request of Boatner, judgment in the latter's favor against the Providence-Washington Insurance Company for $4,750.13, and against the Home Insurance Company for $3,124.60. In that way the court held all the policies in the suit as fully valid and binding.

The companies carried the case to the Court of Civil Appeals at San Antonio, where the judgment of the trial court was reversed, and judgment rendered that Boatner recover nothing as against the Home Insurance Company, and that he recover of the Providence-Washington Insurance Company the sum of $1,000 admitted by it to be due under its policy on the building. See 225 S. W. 1115.

Boatner applied for and secured a writ of error from the Supreme Court, and the cause is now before us for review and recommendation.

Counsel for Boatner, in their motion for rehearing in the Court of Civil Appeals, acquiesced in the rendition by the latter court of a judgment in favor of the Home Insurance Company. For the first time during this litigation they then and there abandoned their vigorous efforts to recover under the Home Insurance Company policy. So, as to that portion of the judgment of the Court of Civil Appeals, there is nothing before us.

It is also true that the counsel for the Providence-Washington Insurance Company accepted the judgment of the Court of Civil Appeals awarding Boatner a recovery of $1,000 on the policy it had issued on the building.

Consequently the only issues confronting us are involved in the action of the Court of Civil Appeals in denying Boatner any recovery under the $1,000 policy on the stock of goods issued by the Providence-Washington Insurance Company or under the $3,250 policy issued by the latter company, distributed $2,500 on the stock and $750 on the furniture and fixtures. Did the Court of Civil Appeals so decree correctly? The answer to this latter query depends upon the defensive provision in said policies already quoted, and which prohibited the taking out of additional or overinsurance.

The Court of Civil Appeals correctly held that the violation of the warranty against concurrent insurance is not rendered nugatory by article 4874a of Vernon's Sayles' Revised Statutes of Texas of 1914. In the case of Philadelphia Underwriters' Agency v. Driggers (Tex. Civ. App.) 238 S. W. 633, our Supreme Court, speaking though Chief Justice Cureton, construing said statute, says:

"This act has reference only to those warranties and provisions in policies the breach of which might contribute to or bring about a fire loss. McPherson v....