Columbian Nat. Fire Ins. Co. v. Dixie Co-Op. Mail Order House

• Decision Date: 14 March 1924
• Docket Number: (No. 8438.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: COLUMBIAN NAT. FIRE INS. CO. et al. v. DIXIE CO-OP. MAIL ORDER HOUSE et al.
• Court: Texas Court of Appeals

261 S.W. 174

COLUMBIAN NAT. FIRE INS. CO. et al. v. DIXIE CO-OP. MAIL ORDER HOUSE et al.

(No. 8438.)^*

Court of Civil Appeals of Texas. Galveston.

March 14, 1924.

Rehearing Denied April 17, 1924.

Error from District Court, Harris County; W. E. Monteith, Judge.

Action by the Dixie Co-operative Mail Order House against the Columbian National Fire Insurance Company and others. Judgment for plaintiff against all but one of defendants, and they bring error. Reformed and affirmed.

Andrews, Streetman, Logue & Mobley, of Houston, and Thompson, Knight, Baker & Harris, of Dallas, for plaintiffs in error.

Taliaferro & Sonfield, of Houston, for defendant in error.

PLEASANTS, C. J.

This suit was brought by defendant in error, hereinafter styled Dixie Company, against the United Mutual Fire Insurance Company and nine other fire insurance companies, hereinafter named, to recover the sum of $6,810.29, alleged to be loss caused by fire to property of plaintiff upon which each of the defendants had issued policies of insurance. The following statement of the substance of the petition is taken from plaintiff in error's brief:

"The Dixie Company sued the United Mutual Fire Insurance Company, Northern National Insurance Company, Law Union & Rock Insurance Company, American Insurance Company, Boston Insurance Company, Concordia Fire Insurance Company, Columbia National Fire Insurance Company, Georgia Fire Underwriters, Liberty Fire Insurance Company, and Royal Exchange Assurance Company, alleging that plaintiff, Mail Order House, insured its goods against loss by fire, in the defendant companies, these contracts being issued prior to November 6, 1920, on the dates set out in the several policies. These policies were issued and delivered in consideration of premium and for a period of one year, and aggregated the sum of $68,000.00; the numbers of the policies, names of the companies, and the amount of insurance in each company being particularly described. Plaintiff further alleged: That a fire occurred November 6, 1920, and damaged the property described in the policies, this property being of the value of one hundred thousand dollars. That after the fire, the companies were notified and each of them except the United Mutual Company, recognizing its liability, employed adjuster to act for it on the loss. At the request of the companies, except the United Mutual Company, the Underwriters' Salvage Company made an inventory of the property to arrive at the amount of loss sustained, which inventory was completed and showed the amount of loss sustained to be $46,310.00. The United Mutual Company failed to participate in the adjustment, alleging that it was not liable for the loss, because its policy had been canceled prior to the fire for nonpayment of the premium. Plaintiff and the companies, except the United Mutual Company, agreed upon the sum of $46,310.00 as the amount of the loss sustained by plaintiff. That, in consideration of the payment by the defendants to the plaintiff of that sum, the salvage from the fire should be taken over by the companies, and sold at public auction and the money received from the sale apportioned between them. The United Mutual was notified of this agreement, made no objection to it, and pursuant thereto Underwriters' Salvage Company sold the property and apportioned the same among the companies as to the amounts due each, except that the amount due the United Mutual has been retained by the Underwriters' Salvage Company. * * *

"Proofs of the loss were furnished as to all companies and that at the time of the fire, and of the giving of the notices of the same, plaintiff believed that there were ten policies outstanding, aggregating $68,000.00, these being the policies described in the petition. That upon the assumption that the United Mutual was liable, notwithstanding its denial of liability, the liability of the several companies was apportioned as set out in the petition, to show an aggregate due of $46,310.00; the charge against the United Mutual being $6,810.29. That, at the time of making this apportionment, it was understood between the plaintiff and the companies that if the United Mutual was not liable then the remaining companies would be proportionately liable for the sum assessed as the liability of the United Mutual and this was the understanding at the time the proofs of loss were executed wherein the United Mutual liability was set forth at $6,810.29. That the companies in accordance with their agreement paid to the plaintiff the several sums of money assessed against them, aggregating $39,499.71, with the understanding at the time of the payment that they would be liable for additional $6,810.29, if it was held that the United Mutual was not liable. That the companies having agreed as to the amount of the loss and having paid the sums of money agreed, are estopped to deny that their liability is not in the sum pleaded, and also estopped to deny liability for the payment of $6,810.29, with interest, if it should be held that the United Mutual is not liable. The acceptance by the plaintiff of a less amount than the entire sum cannot bar recovery for the balance due them; the receipt or release in full for the amount less than the entire sum due is without consideration. That on or about April 15, 1920, the plaintiff contracted with the United Mutual for a fire policy describing its stock, the policy being No. 94012, which was duly executed by the United Mutual, bearing date April 15, 1920, for the term of one year, and being in the amount of $10,000.00. That the consideration for the policy was $109.00, which premium was paid on January 21, 1920, as evidenced by its check which was received by the local agents issuing the policy, indorsed by them and collected, the money delivered over to the United Mutual, which accepted payment and has never tendered plaintiff any part thereof. That this policy provides that in case of cancellation notice of cancellation must be sent in writing to the assured and the plaintiff denied that it got any notice of cancellation prior to the fire. It alleged further that, by the acceptance of the $109.00, any forfeiture of the policy was waived. Plaintiff demanded from the United Mutual the sum of $6,810.29 and it refused to pay same, to the plaintiff's damage in that sum.

"Plaintiff further alleged: That if the court should hold the United Mutual was not liable, then that the remaining companies were liable for $6,810.29. That if the United Mutual is not liable, then, at the time of the fire, there were only nine policies outstanding and in force protecting plaintiff's property in the aggregate sum of $68,000.00, so that plaintiff was acting under a mistake of fact in believing that there were ten policies outstanding at the time of the fire, and that, at the time of making proofs of loss and accepting payment from the defendant companies, plaintiff was under the belief that the United Mutual was in fact liable for the loss. Plaintiff further alleged: That, if the court should hold that the United Mutual was not liable, then that the proof which it made to the defendant companies did not set forth their correct liabilities; that if these proofs had been correct they would have set forth the aggregate liability of defendant companies at $46,310.00, instead of $39,499.71, and that if the United Mutual is not liable any release executed by plaintiff to these companies upon payment by them of a sum less than the amount agreed upon as the loss sustained by plaintiff cannot bar a recovery for the balance due. Plaintiff further alleged that if the court should hold that the United Mutual was not liable, that it should have judgment against it for $109.00, with interest, same being the amount paid to that company as premium upon this policy. It further alleged that if the court should hold none of the defendants liable, then it should have judgment for $2,182.87, being the proportion of the salvage now held by the Underwriters' Salvage Company, as above described. Plaintiff prayed for a judgment against the United Mutual for $6,810.29 and interest, or in the alternative, if that company was not liable for that sum, then for $109.00 and interest. That in the event plaintiff should have judgment against the remaining companies for $6,810.29 and that the $2,182.87 held by the Underwriters' Salvage Company should be turned over to the plaintiff and that sum credited against any judgment which the plaintiff might receive."

The Salvage Company, which was brought into court by garnishment proceedings, answered that the proportionate part of the money derived from the sale of the damaged stock set apart to the United Mutual Insurance Company was held by the Salvage Company subject to the order of the court.

All of the insurance companies, except the United Mutual filed joint answers, the material portions of which are thus summarized in plaintiff in error's brief:

"That these defendants were informed that a loss occurred on November 6, 1920, and pursuant to this notice, the loss was adjusted with the plaintiff and pursuant to this adjustment, the assured made proof of loss to the defendants, copy of the proof being attached, and marked `Exhibit A,' this being the proof furnished to the Liberty Insurance Company; like proofs being furnished to each of the other companies, identical in terms with the exhibit, except as to the policy number, amount of policy, the date of its expiration and the amount claimed against the company, the policy numbers and the amounts of the policies and the dates of expiration being as above set out. That in the proof the plaintiff agreed to accept from the American Insurance Company, $1,362.06; the Boston Insurance Company, $8,512.58; the Concordia $3,064.68; Georgia Fire Underwriters, $1,021.55; Law Union & Rock, $6,810.29; Northwestern National, $3,405.14; Royal Exchange, $10,215.44; and the Liberty, $3,405.14. Pursuant to...