Bryan v. U.S. Fire Ins. Co.

• Decision Date: 18 June 1970
• Docket Number: No. 543,543
• Citation: 456 S.W.2d 702
• Parties: Ben F. BRYAN, Jr., Appellant, v. UNITED STATES FIRE INSURANCE COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 702

456 S.W.2d 702

Ben F. BRYAN, Jr., Appellant, v. UNITED STATES FIRE INSURANCE COMPANY, Appellee.

No. 543.

Court of Civil Appeals of Texas,

Corpus Christi.

June 18, 1970.

Rehearing Denied July 23, 1970.

Murfee & Hoover, Howard S. Hoover, Sweeney J. Doehring, Jr., Houston, for appellant.

Dyer, Redford, Burnett, Wray, Woolsey & Dunham, Corpus Christi, for appellee.

OPINION

GREEN, Chief Justice.

This is a suit to recover on a fire insurance policy. The appeal by plaintiff is from a take-nothing summary judgment. We affirm.

Appellee United States Fire Insurance Company issued its Texas Standard Farm and Ranch Owners policy to appellant Ben F. Bryan, Jr. for the policy period from November 15, 1966 to November 15, 1969. As concerns this appeal, the policy insured a frame rural dwelling house against fire damage 'while occupied by the Insured principally for dwelling purposes.' The house together with all personal property therein was destroyed by fire on or about June 8, 1968. Suit was filed by insured to recover for loss caused by the fire to the building and its contents. Appellee filed a motion for partial summary judgment directed to coverage on the building only, and not to that portion of plaintiff's pleadings concerning coverage on unscheduled household goods and personal effects destroyed in the fire. It was appellee's contention that at the time of the fire the house was not occupied by insured principally for dwelling purposes, but that it had been rented to and was occupied by a tenant, and that under the express provisions of the policy, coverage of the dwelling house was suspended during such period of non-occupancy by insured. The trial court sustained appellee's motion, and rendered a summary judgment that appellant take nothing for the loss of his building. The court severed such portion of the cause from the suit seeking recovery for loss to the contents of the house, thus causing said judgment to become a final judgment, and appellant has perfected his appeal therefrom.

The summary judgment evidence consisted of the pleadings of the parties, the affidavit and supplemental affidavit of Clyde M. Croninger, manager of the adjusting company which handled this claim on behalf of appellee, and the depositions of appellant, his wife at the time of the fire (since divorced), and Robert Novick, allegedly appellant's tenant and occupant of the house at the time of the fire .

The evidence, mostly from appellant's deposition, establishes that until November 1967, appellant and his wife Judith resided in the house in question, situated on their farm about two miles from Sinton, Texas. In November 1967 they purchased a house in Alice, Texas, furnished it with new furnishings, and Judith moved into this house. Appellant and Judith lived as man and wife until June 10, 1968, at which time, according to appellant's deposition, they separated, and a divorce was secured in January 1969. Appellant had diverse business interests in Sinton, Houston and elsewhere in south Texas, and in February or March 1968, he rented an apartment for himself in Houston on a month to month basis. In March 1968, he made arrangements with Robert Novick to rent the farm dwelling house near Sinton on a month to month basis, under which agreement Novick and his family were to move into the house, do some work on it, and Novick was to pay appellant $75.00 per month rent (which as a matter of fact though duly dunned in writing by appellant, Novick never paid.) Most of appellant's furniture and some personal effects remained in the farm dwelling house. Novick and his family moved into this house about March 15, 1968, and continued to occupy it until it was destroyed by fire on or about June 8, 1968. Although appellant kept a key to the house, and testified that he had intended to move back there when he finished his Houston business affairs, neither he nor his wife Judith went to or entered the dwelling house after Novick started occupying it.

Novick's deposition confirmed his rental of the house from appellant, and the occupancy by him and his family. He testified that as a result of his rental of appellant's house, he leased his home in Corpus Christi for a period of six months.

After the fire, appellant filed two sworn Proofs of Loss with appellee. In the first, signed and sworn to by appellant, dated July 17, 1968, it is stated: 'The building described, or containing the property described, was Occupied at the time of said loss as follows: TENANT DWELLING and for no other purpose.'

The second Proof of Loss, signed and sworn to by appellant on October 31, 1968, contained the following: 'The building described * * * was Occupied at the time of said loss as follows: Ranch House (main dwelling)--Occupied by tenant and for no other purpose.'

Croninger's affidavit established that under the rules and regulations of the Texas State Board of Insurance, a separate and different form of policy of insurance must be issued to an owner of premises who permits the main dwelling to be occupied by a tenant, as contrasted to a situation where the insured himself occupied the main dwelling for dwelling purposes. A higher premium is charged for the tenant occupied dwelling. Appellant's first point of error reads:

'The district court erred in granting appellee a summary judgment for the reason there exists a genuine issue of material fact as to whether or not at the time and on the occasion in question the dwelling was occupied by appellant principally for dwelling purposes within the meaning of the insurance policy.'

As stated in Odom, Administrator et al. v. Insurance Company of the State of Pennsylvania, Tex.Sup. (May 27, 1970), 455 S.W.2d 195, 198:

'In cases where a summary judgment has been granted, whether in favor of the plaintiff or defendant, 'the question on appeal, as well as in the trial court, is not whether the summary judgment proof Raises fact issues with reference to the essential elements of a plaintiff's claim or cause of action, but is whether the summary judgment, proof Establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff's cause of action. The last sentence of paragraph (c) of Rule 166--A, Texas Rules of Civil Procedure, governs. It provides:

"The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, Show that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.Sup.1970); Harrington v. Young Men's Christian Association of Houston and Harris County, Texas, 452 S.W.2d 423 (Tex.Sup.1970); Prestegord v. Glenn, 441 S.W.2d 185 (Tex.Sup.1969); Rule 166--A(c), Texas Rules of Civil Procedure.'

The policy here sued on, a Texas Standard Farm and Ranchowners policy, insured the dwelling house 'while occupied by the Insured principally for dwelling purposes.' Thus, it did not insure such house during a period of time that Insured was not occupying it principally for dwelling purposes, as when sole occupancy and use was by a renter as his dwelling. British America Assur. Co. v. Miller, 91 Tex. 414, 44 S.W. 60; United States Fire Ins. Co. of New York v. Rothwell, Tex.Com.App., 60 S.W.2d 759; Fidelity Union Fire Ins. Co. v. Pruitt, Tex.Com.App., 23 S.W.2d 681, holding approved; Home Insurance Co. v. Currie, C.C.A.5th Cir., 54 F.2d 203; Grady v. Concordia Fire Ins. Co. of Milwaukee, 267 N.Y. 177, 196 N.E. 16; Lineas Aereas Colombianas Expresas v. Travelers Fire Insurance Company, U.S.Ct.App.5th Cir., 257 F.2d 150.

We feel that the summary judgment proof conclusively...