Damron v. Fireman's Fund Ins. Co., 7771

• Decision Date: 17 June 1968
• Docket Number: No. 7771,7771
• Parties: Homer DAMRON et ux., Appellants, v. FIREMAN'S FUND INSURANCE COMPANY, Appellee. . Amarillo
• Court: Texas Court of Appeals

Page 956

430 S.W.2d 956

Homer DAMRON et ux., Appellants, v. FIREMAN'S FUND INSURANCE COMPANY, Appellee.

No. 7771.

Court of Civil Appeals of Texas Amarillo.

June 17, 1968.

Rehearing Denied July 29, 1968.

Jerry Hollingsworth, Amarillo, for appellants.

Gibson, Ochsner, Harlan, Kinney & Morris, J. Hadley Edgar, Jr., Amarillo, of counsel, for appellee.

DENTON, Chief Justice.

Homer Damron and wife sued Fireman's Fund Insurance Company to recover upon a loss by theft under an insurance policy. The trial court instructed a verdict for the defendant below and the plaintiffs have perfected this appeal.

Appellants were the owners of a jewelry store in downtown Amarillo . In the Fall of 1964 they rented a new building in a suburban shopping center with the plan of moving the downtown merchandise into the new building at a future date. The new store was opened in early December 1964, largely with merchandise moved from the downtown store. On December 10, 1964 appellant obtained a proposal for a 'Jeweler's Block Policy' from the Hayes-Beasley Insurance Agency to cover merchandise in the new store. On the same date Fireman's Fund Insurance Company, appellee, issued an insurance binder based upon the proposal. During the evening hours of December 30, 1964 the new store was burglarized and appellants allege some of their merchandise was stolen. Appellants' original suit was filed against appellee and the American Indemnity Company. The suit against the latter company was subsequently severed without objection, and that company is not a party to this suit. By amended pleadings, appellants alleged an alternative cause of action against the Hayes-Beasley Insurance Agency and a claims adjuster for Fireman's Fund. Prior to the trial of the suit this cause of action was severed from the alleged cause of action against Fireman's Fund.

Appellants' first contention is the trial court erred in severing the cause of action against the Hayes-Beasley Agency and the claims representative of Fireman's Fund. This contention is without merit. Appellee's motion to sever was leveled against appellants' first amended petition which was filed without leave of the court three days before the case was set for trial. Appellee simultaneously filed a motion to strike the first amended petition. Both motions were granted by separate orders. Subsequently, the case was reset and appellants filed their second amended petition four days prior to the trial date without leave of the trial court. Appellee's motion to strike this pleading was also granted. Both the first and second amended petitions, not having been timely filed and having been struck by the trial court, are not to be considered by this court. Medina v. Sherrod (Tex.Civ.App.) 391 S.W.2d 66. Burkitt v. Broyles (Tex.Civ.App.) 340 S.W.2d 822 (Ref. N.R.E.). Rule 63, Texas Rules of Civil Procedure. Appellants' original petition, upon which the case was tried, alleged the cause of action only against Fireman's Fund upon the insurance policy and did not include the alleged alternative cause of action against the Hayes-Beasley Agency or the Fireman's Fund claims representative, which is the basis of the alleged error of granting the motion to sever. These latter parties were not before the trial court as defendants. An order of severance could have no force and effect. There can be no severance involving an alleged cause of action against parties not properly before the court.

Subsequently to the trial courts striking appellants' first amended petition and ordering a severance, and prior to the filing of the second amended petition, appellant filed a motion to reinstate its first amended petition and to consolidate the two alleged causes of action. The trial court's denial of this motion constitutes appellants' second point of error. The alleged cause of action against Fireman's Fund was one on the insurance contract, while the cause of action alleged against the insurance agency and claims representative was for negligence and misrepresentation. The Rules of Civil Procedure grant courts broad discretion in the matter of consolidating and severance of causes and the court's action in such matters will not be disturbed on appeal except for abuse of discretion. Rules 174 and 41, T.R.C.P. Womack v. Berry, 156 Tex. 44, 291 S.W.2d 677. Hamilton v. Hamilton, 154 Tex. 511, 280 S.W.2d 588. Assuming arguendo, that appellants' amended petition was properly before the court, we think the trial court did not abuse its discretion in refusing to consolidate the two cases; one in contract and the other in tort. Lloyds Alliance v. Cook, Tex.Civ.App., 290 S.W.2d 716.

Appellants' last point of error is directed to the action of the trial court in granting appellee's motion for instructed verdict. In reviewing this point, the evidence must be viewed in...