Burlington Ins. Co. v. Rivers

• Decision Date: 05 December 1894
• Citation: 28 S.W. 453
• Parties: BURLINGTON INS. CO. v. RIVERS.
• Court: Texas Court of Appeals

28 S.W. 453

BURLINGTON INS. CO. v. RIVERS.

Court of Civil Appeals of Texas.

December 5, 1894.

Appeal from Bastrop county court; R. W. Siddall, Judge.

Action by W. H. Rivers against the Burlington Insurance Company. There was a judgment for plaintiff, and defendant appeals. Affirmed.

Fowler & Maynard, for appellant. B. D. Orgain and H. M. Garwood, for appellee.

KEY, J.

Appellee sued and recovered upon a fire insurance policy. A general demurrer to his petition was overruled, and error is assigned upon this ruling.

1. The policy enumerates a number of different circumstances in which it is stated the company will not be liable, among which is the following: "This company shall not be liable for loss by theft at or after a fire, nor for loss caused by invasion, insurrection, riot, civil commotion, military or usurped power." The petition alleged that the property insured was totally destroyed by fire, but did not negative the fact that the fire was caused by invasion, insurrection, riot, civil commotion, military or usurped power; and for this omission appellant contends that it fails to state a cause of action, and is subject to a general demurrer. In support of this contention appellant's counsel cite Pelican Ins. Co. v. Troy Co-op. Ass'n, 77 Tex. 225, 13 S. W. 980, and Insurance Co. v. Boren, 83 Tex. 97, 18 S. W. 484; and, while the precise question now under consideration does not appear to have been decided in either of those cases, it must be conceded that both of them—and especially certain expressions of the judge who wrote both opinions—tend strongly to support the proposition upon which they are cited. Still, we do not regard the question as conclusively settled in this state, and, believing that the weight of authority supports a different and better rule than that intimated in the cases referred to, on the question under consideration we decline to follow them. And this is said and done with due respect for our supreme court, and with profound regard and veneration for the late chief justice, who so long and ably served upon that bench, and who wrote the opinions in the cases mentioned. On the question under consideration a standard author says: "The complaint must set forth a loss, arising from the peril insured against; and if the policy excepts against a loss occasioned by a fire arising from an explosion, or from lightning, or from the falling of a building, or from any other special cause, although not necessary, it is proper to aver that the loss resulted from a fire not arising from any of the excepted causes. * * * It is not indispensably necessary that the declaration should negative the exceptions contained in the policy, as that the loss did not result from an invasion, as such matters are exclusively for the benefit of the insurer, and are strictly matters of defense, and are not conditions precedent." Wood, Ins. § 519, pp. 1132, 1133. To the same effect is May on Insurance (volume 2, 3d Ed., § 590, p. 1337), a treatise of equal merit. The precise question before us was considered and decided in Lounsbury v. Insurance Co., 8 Conn. 459, and the judge delivering the opinion of the court said: "It is contended by the counsel for the defendants that the declaration is insufficient. It states generally that the defendants, being an incorporated company, for a certain premium, by their policy, made insurance on the buildings, etc., of the plaintiff, viz. a building occupied by the plaintiff as a manufactory of hat bodies, and on the privilege for all the process of said business. There were many conditions annexed to the policy, which the declaration recites with an unnecessary particularity, and then alleges a loss by fire, and that the plaintiff made proof of loss according to the requirements of the policy. One of those conditions, as they are called, is that the insurers `will not be liable for any loss or damage which may happen or take place by means of any invasion, insurrection, riot, or civil commotion, or of any military or usurped power.' Another is that if the building shall be used during the year for which it is insured for any occupation deemed in the policy hazardous or extrahazardous, such as soap-boiler's or tallow-chandler's business, etc., unless otherwise in the policy specially provided for, then, so long as it may be thus occupied, the policy shall cease, and have no effect. Now, it is said that the declaration is insufficient, because these exceptions are not negatived. I feel no difficulty on this point. All these conditions, if such they may be called, are inserted in the policy by way of proviso, and not at all as conditions precedent. They are introduced...