Commercial Union Assur. Co. v. Preston
| Decision Date | 04 February 1922 |
| Docket Number | (No. 8612.)<SMALL><SUP>*</SUP></SMALL> |
| Citation | 238 S.W. 326 |
| Parties | COMMERCIAL UNION ASSUR. CO., Ltd., v. PRESTON. |
| Court | Texas Court of Appeals |
Action by T. J. Preston against the Commercial Union Assurance Company, Limited. Judgment for plaintiff, and defendant brings error. Affirmed.
Locke & Locke and Paul Carrington, all of Dallas, for plaintiff in error.
Williford & Geppert, of Teague, for defendant in error.
Defendant in error brought this suit July 15, 1920, against plaintiff in error to recover upon a policy of fire insurance issued by it to cover loss or damage to certain equipment of his moving picture show. Plaintiff in error admitted liability, and renewed in its answer a tender which it had previously made to the defendant in error for all items claimed in a proof of loss submitted, excepted for moving picture machines and attachments and for films. It denied liability for these because of the following provision contained in the policy:
"It being understood that this company shall not be liable for loss or damage to moving picture machines or attachments caused by fire originating within the machines, nor does this policy cover loss or damage to films from any cause."
In reference to the above provision defendant in error pleaded as follows: That said clause was wrongfully and illegally inserted in said policy, and is absolutely void, and the plaintiff in error had no legal right to insert said clause in said policy, and thereby attempt to limit its liability and make nugatory the statutes of this state placing all insurance companies under its regulations; that said clause or form has never been promulgated, approved, or allowed by the State Fire Insurance Commission of Texas; that said Fire Insurance Commission of Texas never did authorize the use of said clause, nor has the said Fire Insurance Department of Texas ever ratified the action of the plaintiff in error in using said form or clause; that the plaintiff in error did charge defendant in error the highest rate for said hazard incident to said risk permitted under the law and the regulations of the said Insurance Commission; that the plaintiff in error having received full compensation for said risk from every contingency, it cannot limit its liability by such unauthorized acts.
Plaintiff in error also opposed two other items on which suit was brought aggregating $57.50, no statement or proof of loss of which had been previously submitted to the company as required by the terms of the policy, and also urged the three-fourths value clause of the policy.
Replying to this, defendant in error alleged that he did, in good faith, furnish the plaintiff in error with proofs of loss, but that through no fault of his own failed to include therein the item of damage to electric orchestra, because at the time said proofs of loss were furnished he did not know that said orchestra had been damaged by fire, and only discovered same prior to the filing of suit, when his attention was first called to the damage by the repair man who was overhauling said orchestra; that the damage to said electric orchestra was latent, caused by smoke and soot which penetrated the tubing and valves; that the item of $7.50 for extinguisher was omitted through an oversight; that plaintiff in error was in no wise injured by failure to include said items in the proofs of loss, and waived any proofs of loss covering same by denying liability except for items in its tender.
Trial before the court without a jury resulted in a judgment in favor of defendant in error for $1,497.57, said amount including all controverted items as well as those on which liability had been admitted, interest on the total amount from the date of tender by plaintiff in error. Costs were adjudged against plaintiff in error. The proceedings had in the court below are now before us for review by writ of error.
Statement of material facts considered in disposing of this cause:
Defendant in error owned a moving picture show at Teague, Tex. Plaintiff in error issued and delivered to him on February 2, 1920, its policy of fire insurance No. 100,789, whereby it insured him on certain contingencies against loss or damage by fire to the amount of $2,000 upon his "moving picture machines, accessories, musical instruments, office furniture and fixtures, ticket vending machine, chairs, fans, electric light fixtures and all other furniture and fixtures, not more hazardous, usual to a picture show."
The above property was at the time said policy was issued, and when the loss occurred as alleged by defendant in error, of the value of $6,000. The policy was to be effective from February 23, 1920, to February 23, 1921. On March 8, 1920, said policy being in full force and effect, defendant in error suffered loss by fire on the following items: Two Emerson buzz fans, $54; one tool box, $20; one rewind set, $6; tools, $16; one front suction fan, $25; damage to safe, $10; seats damaged by water, $100; linoleum, $12; revolving stool in booth, $15; slides and tickets, $2.50; express and drayage on machines and installations, $25; electric installation and materials, $70.02; two 6B Powell machines, $1,004; one compenarc, $80.20; fire extinguisher, $7.50; damage to orchestra, $50.
The company admitted liability on the items above listed and in said amounts, except the four items last enumerated. The entire controversy before the court involves the last four items. On June 25, 1920, the company made legal tender of the full amount lost on each of said items except the last four. In its answer filed in the court below the company renewed this tender. That the loss sustained by fire to the items "two 6B Powell machines and one compenarc" was loss to moving picture machines and attachments as those terms were used in the policy provision above quoted, and that the loss to said items was caused by fire originating within the machines.
Only one proof of loss was submitted to the plaintiff in error. It contained no reference to the items of fire extinguisher, $7.50. and damage to orchestra, $50. The policy issued was on the printed form of policy known as the Texas standard fire policy. Attached thereto was a rider which described the property covered by the policy, conditions defining the risk assumed, such as the three-fourths value clause, the record warranty clause, and various permits. Indorsed in writing on this rider was the following clause:
"It being understood that this company shall not be liable for loss or damage to moving picture machines or attachments caused by fire originating within the machines, nor does this policy cover loss or damage to films from any cause."
That said clause had not been theretofore prescribed by the Insurance Commission, approved by it, nor the use of it authorized on policies of fire insurance, and was not approved by Insurance Commission after placed on policy involved in this suit or the use of same called to the attention of said Commission until after the loss on property covered by the policy.
The proof established that the defendant in error sustained damage in the sum of $1,497.57 as shown by the 16 items above set out. All the property covered by said policy and involved in this litigation was insured under one item in the sum of $2,000. Plaintiff in error charged and received from defendant in error a premium for such risk amounting to the highest rate allowed by law, to wit, $3.05 per hundred. That long before the date of the issuance of said policy the Insurance Commission had prescribed and promulgated a standard form of policy clauses and indorsements to be used on or in connection with same, copies of which had been furnished to plaintiff in error as required by law for more than 60 days before said policy was issued, which forms did not contain the provision:
"It being understood that this company shall not be liable for loss or damage to moving picture machines or attachments caused by fire originating within the machines"
—or authorize the use of one containing similar language as part of fire insurance policies.
By the assignments of error the following propositions are presented on this appeal: (1) That the clause limiting the application of the contract of insurance, to wit, "It being understood that this company shall not be liable for loss or damage to moving picture machines or attachments caused by fire originating within the machines," was a valid clause by which plaintiff in error was not liable for the two machines, $1,004, and one compenarc, $80.20, for the reason that said items were not covered by the contract of insurance, liability thereon being specifically excepted; (2) that the proofs of loss submitted did not contain the items of fire extinguisher, $7.50, and damage to orchestra, $50, as required by the contract of insurance; therefore, plaintiff in error was not liable for same; (3) that under the three-fourths value clause contained in the policy, plaintiff in error was not liable for an amount more than the three-fourths of the actual cash value of each item insured by the policy at the time immediately preceding the loss or damage sustained by defendant in error; (4) that no interest should have been adjudged against plaintiff in error from the date of tender; (5) and that all the costs should not have been adjudged against plaintiff in error.
In support of first proposition, plaintiff in error contends: (a) That in the absence of statute governing such contracts said provision that the insurer shall not be liable for loss to moving picture machines or attachments caused by fire originating within the machines would be enforced as a valid term of the contract between the parties; (b) that the parties to the contract were authorized by the provisions of the Texas Statutes to place on the policy in suit said clause,...
To continue reading
Request your trial
-
North River Ins. Co. v. Thomas
...in Ins. Co. v. Gomillion (Tex Civ. App.) 178 S. W. 1050. A writ of error was refused in each of these cases. In Insurance Co. v. Preston (Tex. Civ. App.) 238 S. W. 326, the same effect was given to the uniform policy adopted by the fire insurance commission as has been given in other states......
-
Garrison v. Great Southern Life Ins. Co.
...18 S. W. 439; Delaware Underwriters & Westchester Fire Insurance Co. v. Brock, 109 Tex. 431, 211 S. W. 779; Commercial Union Assur. Co. Ltd. v. Preston (Tex. Civ. App.) 238 S. W. 326. We believe that, under the decisions above quoted, it is firmly established in the jurisprudence of this st......
-
Fire Ass'n of Philadelphia v. Hinton
...that the usual, ordinary and lawful policy under the circumstances was in contemplation of the parties. Commercial Union Assurance Co. v. Preston (Tex. Civ. App.) 238 S. W. 326. In order to apply the "distribution average clause," it would be necessary to know the value of the goods in each......
-
Board of Ins. Com'rs v. Carter, 9858
...therewith nugatory is a legislative function, which cannot be delegated to any other board or official. 'In Commercial Union Assurance Co. v. Preston, Tex.Civ.App., 238 S.W. 326, the same effect was given to the uniform policy adopted by the fire insurance commission as has been given in ot......