Camden Fire Ins. Ass'n v. Missouri, K. & T. Ry. Co. of Texas

• Decision Date: 20 March 1915
• Docket Number: (No. 7239.)
• Citation: 175 S.W. 816
• Parties: CAMDEN FIRE INS. ASS'N v. MISSOURI, K. & T. RY. CO. OF TEXAS et al.
• Court: Texas Court of Appeals

175 S.W. 816

CAMDEN FIRE INS. ASS'N v. MISSOURI, K. & T. RY. CO. OF TEXAS et al.

(No. 7239.)

Court of Civil Appeals of Texas. Dallas.

March 20, 1915.

Rehearing Denied April 24, 1915.

Error from District Court, Dallas County; J. C. Roberts, Judge.

Action by the Camden Fire Insurance Association against the Missouri, Kansas & Texas Railway Company of Texas and another. Judgment for defendants, and plaintiff brings error. Affirmed.

E. G. Senter, of Dallas, for plaintiff in error. Harry P. Lawther, of Dallas, and W. T. Russell, of Nocona, for defendants in error.

TALBOT, J.

The plaintiff in error, Camden Fire Insurance Association, brought this suit against the defendants in error, Missouri, Kansas & Texas Railway Company of Texas and C. McCall, to recover $654.50, the amount paid by said insurance association to said McCall upon a policy of fire insurance covering certain property owned by said McCall and destroyed by fire. The material facts are substantially as follows: The Camden Fire Insurance Association executed and delivered to the defendant in error C. McCall its policy of fire insurance in the sum of $600, thereby insuring against loss by fire in the sum of $200 a warehouse building situated near the railroad track of said railway company owned by said McCall, and in the sum of $400 a lot of corn contained in said building, all situated in the town of Nocona, Tex. While this policy was in force said property was destroyed by fire as a result of the negligence of the railway company. After the fire Mr. Dargan, the adjuster for the Camden Fire Insurance Association, called on McCall and talked with him about the adjustment of the loss. Dargan then agreed that the loss was entire, and asked McCall if he would assign the amount of the policy to him against the railroad company, and McCall replied that he would. McCall says he then thought it was agreed that Dargan was to give him a draft in full settlement of the policy. He further says that a few days after Mr. Dargan left Nocona he got a letter from him in which Mr. Dargan denied any liability on the policy and refused to pay him anything at all, and offered him his premium back. This letter was introduced in evidence and confirms the statement of the witness. On December 24, 1909, the insured, McCall, brought suit in the district court of Montague county, Tex., against the Camden Fire Insurance Association, on the policy issued to him, and on the same day sued the Missouri, Kansas & Texas Railway Company of Texas, alleging that the property covered by the said fire insurance policy had been destroyed as the result of the negligence of its agents and servants. Thereafter, on the 25th day of January, 1911, McCall recovered judgment against the said railway company for the sum of $1,324.75, being the value of his property as determined by the jury; and on the 7th day of August, 1911, McCall recovered judgment against the Camden Fire Insurance Association on its policy of insurance for the sum of $654.50, the same being the amount of said policy and interest to that date. The policy of insurance issued by the Camden Fire Insurance Association to McCall contained the following stipulation:

"If this company shall claim that the fire was caused by the act or neglect of any person or corporation, private or municipal, this company shall, on payment of the loss, be subrogated to the extent of such payment to all right of recovery by the insured for the loss resulting therefrom, and such right shall be assigned to this company by the insured on receiving such payment."

George S. Marsh, attorney for McCall, testified that while the suit against the insurance company was pending he offered on behalf of McCall to subrogate the claim of McCall against the railroad company to the extent of the insurance, provided the insurance company would pay its policy; also that he had invited the insurance company to join in the suit against the railroad company. E. G. Senter, attorney for the Camden Fire Insurance Association, testified that Marsh had made no offer to execute subrogation to the insurance company, but that he had made an argument before Judge Potter, judge of the district court of Montague county, denying that any right of subrogation existed in favor of the insurance company, while the suit of McCall against the Camden Fire Insurance Association was pending in that court. He testified he was present at the trial of the case against the railroad company, and that Marsh had not invited the insurance company to join in the suit.

The Camden Fire Insurance Association did not in any way make, or seek to make, itself a party to the suit of McCall against the railway company, and set up its right of subrogation under the provision of the policy above quoted. In the suit of McCall against it on the fire insurance policy said insurance association pleaded, as is shown by its second amended original answer which was introduced in evidence by it on the trial of the present case, a general denial, and specially that prior to the fire which destroyed the property covered by the insurance policy McCall had made a contract with the Missouri, Kansas & Texas Railway Company which contained a provision that he should keep said building and its contents insured for the benefit of said railway company against any loss or damage by fire communicated in any manner from the engines or other machinery of said railroad company, and that by reason of said contract the insurance company was cut off from any right of recovery from said railroad company on account of its negligence which caused the destruction of the property, and that because thereof said insurance association was not bound upon said policy of insurance issued to said McCall. Said insurance association further pleaded as defenses in said suit against it by McCall the violation by McCall of several provisions of the policy therein sued on, and asserted that by reason thereof he was not entitled to recover. The judgment obtained by McCall against the insurance company was paid off by the company before the final determination of the suit between McCall and the railroad company. When this action was brought the Missouri, Kansas & Texas Railway Company of Texas had not paid off the judgment obtained against it by McCall, and held said funds in its hands at the time of service of citation upon it herein. McCall paid out on account of expenses incurred by him in his suit against the Missouri, Kansas & Texas Railway Company of Texas sums of money aggregating $489.18. These expenses were set up by the defendant in error McCall in this suit with the prayer that, if the court should find that he was liable to the plaintiff in error for any sum, the amount of said expenses be set off against such sum, etc. The case went to trial June 3, 1913, before the court and a jury, and when the introduction of the evidence was closed the court instructed the jury to return a verdict in favor of the plaintiff in error for the sum of $110.82. Such verdict was by the jury returned, judgment entered in accordance therewith, and the plaintiff in error brings the case to this court by writ of error.

The defendant in error McCall has filed a motion in this court to strike out the statement of facts. The grounds of the motion, in substance, are that in the trial of the case in the court below an official stenographer of that court was present and took shorthand notes of the evidence and testimony adduced; that plaintiff in error did not have such stenographer to prepare and file with the clerk of the court below a transcript of the testimony and evidence given on the trial, and that neither it nor its counsel requested the preparation of such transcript in any form; that the statement of facts filed herein was prepared by the attorney representing the plaintiff in error, and then submitted to, and approved by, the judge who tried the case without the consent of defendant in error McCall or his counsel; that neither defendant in error McCall nor his attorney ever agreed with the plaintiff in error or its attorney that the statement of facts filed herein might be prepared by the attorney of plaintiff in error from his recollection of the facts and filed as a part of the record herein, but at all times insisted that a full and complete statement of facts be made up from the stenographer's notes as prescribed by the statutes relating thereto. In support of this motion the case of Buffalo Bayou Co., Inc., v. Lorentz, 170 S. W. 1052, is cited. This case sustains the contention of the defendant in error, but we are unable to agree to the decision therein rendered. A careful reading and consideration of the several provisions of our statute relating to the preparation of statements of fact in appealed cases leads us to the conclusion that it was not the intention of the Legislature that the method or manner prescribed by articles 1924 and 2070 of the Revised Statutes should be exclusive of the manner prescribed by articles 2068 and 2069, unless the parties to the appeal agree to a statement of facts prepared under the latter statutes. Article 2068 of the statute provides that:

"After the trial of any cause, either party may make out a written statement of the facts given in evidence on the trial, and submit the same to the opposite party, or his attorney, for inspection. If the parties, or their attorneys, agree upon such statement of facts, they shall sign the same; and it shall then be submitted to the judge, who shall, if he find it correct, approve and sign it; and the same shall be filed with the clerk."

Article 2069 provides that:

"If the parties do not agree upon such statement of facts, or if the judge does not approve or sign it, the parties may submit their respective statements to the judge, who shall, from his own knowledge, with the aid of such statements make out and sign and file with the clerk a correct statement of the facts...