Fidelity Southern Fire Ins. Co. v. Crow

• Decision Date: 06 May 1965
• Docket Number: No. 4336,4336
• Citation: 390 S.W.2d 788
• Parties: FIDELITY SOUTHERN FIRE INSURANCE COMPANY, Appellant, v. T. B. CROW et ux., Appellees.
• Court: Texas Court of Appeals

Page 788

390 S.W.2d 788

FIDELITY SOUTHERN FIRE INSURANCE COMPANY, Appellant, v. T. B. CROW et ux., Appellees.

No. 4336.

Court of Civil Appeals of Texas, Waco.

May 6, 1965.

Rehearing Denied May 27, 1965.

Bryan & Patton, Julietta, Jarvis, Houston, for appellant.

C. Wayne Holder, Freeport, for appellees.

TIREY, Justice.

Plaintiff brought this action on a texas Standard form insurance policy with Physical Loss Form Endorsement issued by the Fidelity Southern Fire Insurance Company covering the dwelling of plaintiff for damages under the provisions of such policy and endorsement arising out of Hurricane 'Carla' of September 9, 10, and 11, 1961. The insurance policy, together with the Physical Loss Form Endorsement provides coverage for 'all risks of physical loss' to the dwelling, building or structure described in the face of the insurance policy except specific losses excluded under Section II of the endorsement. Plaintiff sought damages under such policy and endorsement as a result of wind and wind driven rain entering the dwelling of the appellee from Hurricane Carla. In paragraphs 4, 5 and 6 of plaintiff's trial amendment, we find the following allegations:

'IV. That on or about September 11, 1961, a hurricane called 'Carla', having heretofore developed struck the Gulf Coast of the State of Texas, the eye thereof passing south and west of Freeport, Texas, at Matagorda and Port O'Connor; that the wind and wind driven rain created by the aforesaid Hurricane Carla, created openings in the roof and sides of the insured's premises above, and, as a direct result of said wind and rain driven thereby, the premises aforesaid sustained damages in the total amount of $7,832.00; that said damage was all sustained and is within the coverage of the policy aforesaid; that plaintiff has heretofore made demand for payment but that defendant has failed and refused to pay the amount within its policy limits.

V. That plaintiff has complied with all conditions precedent to the filing of this suit required by the terms of said policy; and in the alternative, if plaintiff be mistaken in his belief that all conditions precedent have been so complied with, then in such event, plaintiff says that defendant through its agents, attorneys, and employees has waived any such provisions of such policy making any one or more item or items a condition precedent to the filing of this suit.

VI. That under the conditions of said policy and endorsement aforesaid, the defendant agreed to pay 10% of the amount of insurance carried to apply to the rental value of the described building occupied by insured, but not to exceed 10% for both, whenever such expenses are occasioned by a loss within the meaning of such policy; that plaintiff sustained such loss within the meaning of such policy in an amount of Six Hundred Ninety & No/100 ($690.00) Dollars.'

He prayed for damages in the amount of $7,590.00, with legal interest from December 26, 1961, the date of trial, and with interest from date of judgment at the legal rate.

Defendant entered a general denial and pertinent to this discussion pleaded the exclusion, 'tidal wave, high water, or overflow, whether driven by wind or not.' The jury found that the house was damaged by wind and wind driven rain; that the value before Carla was $7,400, and the value after was $68.00; that the cost of repair was $7,332, and that the wind made openings and permitted rain and wind driven rain to enter through openings; that the house was uninhabitable and could be reasonably restored in three months; that the increase in household expense was $210; that the damage was caused by tidal wave, high water, overflow or rising water, and that the cost of repair of such damage was $400, and that plaintiff did not fail to file proof of loss and that the company waived the filing of proof of loss. The court entered judgment for $6,900, the face amount of the policy. Defendant's motions for instructed verdict and for judgment notwithstanding the verdict were overruled and it perfected its appeal and the cause is here on transfer.

Appellant has assigned 26 points of error. Point 1 is to the effect that the court erred in failing to sustain its motion for judgment notwithstanding the verdict, and in entering judgment for plaintiff based on the jury finding to special issue No. 3, because there is no evidence to support the jury's answer that $7,332.00 is the 'actual and necessary cost of repairing plaintiff's dwelling * * * damaged solely, if any, as a direct result of the wind and wind driven rain * * * with material of like kind and quality.'; Point 2 assails the insufficiency of the evidence to support the jury's answer to issue No. 3, and that the answer is so against the great weight and preponderance of the evidence and is the result of bias and prejudice so as to be clearly wrong; Points 3 and 4 are to the effect that there is no evidence to sustain the jury's answer to issue 5 to the effect that the actual cash value of plaintiff's house just after Hurricane Carla was $68.00, and that its motion for judgment notwithstanding the verdict of the jury should have been granted, and that the answer to issue 5 is so against the great weight and preponderance of the evidence as to be clearly wrong and is the result of bias and prejudice; Points 5 and 6 are to the effect that there is no evidence that the actual cost of repairing the damage done by 'tidal wave, highwater, overflow or rising water' was 400/7332 of the damage, or that damage covered by the policy constituted the building a total loss, and that the evidence is insufficient to support the judgment for total loss, and that it is against the great weight and preponderance of the evidence; Point 7, in refusing its special issue No 21, which was: 'From a preponderance of the evidence what do you find to be the percentage of loss and damage to plaintiff's house on the premises in question as a direct result of the winds of Hurricane Carla, based upon 100%? Give your answer in percentage.'; Point 8, in refusing defendant's requested issue No. 20, which was: 'What do you find from a preponderance of the evidence to be the reasonable and fair cost, if any, to repair or replace plaintiff's house to the condition in which it was just before the occurrence made the basis of this suit, with material of like kind and qualify within a reasonable time after the loss', and the accompanying instruction, 'In connection with the above and foregoing issue, in arriving at your answer, you will make allowance for depreciation, if any, and you will not allow for any increased cost of repair or reconstruction by reason of any ordinance or law regulating construction or repair. You will likewise not consider or allow anything for damage that was not a direct result of the winds of Hurricane Carla.'.

Appellant says that the effect of the foregoing points is that there is no evidence and insufficient evidence that the house in question sustained damages which amounted to repair costs of $7,332 less $400 as a result of damage above the water flood line, or that the house was worth only $68 immediately after Hurricane Carla; that the refusal of defendant's requested issues 20 and 21 enabled the plaintiff to recover judgment based on the most advantageous extreme of two estimates.

We overrule each of the foregoing points for reasons hereinafter stated. Plaintiff's exhibits 1 and 2 relate to the basic fire and windstorm and extended coverage policy and the Physical Loss Form Endorsement. Under Section III of the basic insurance policy, we find:

'CONDITIONS APPLICABLE ONLY TO WINDSTORM, HURRICANE AND HAIL:

Unless specifically named hereon, the company shall not be liable for loss to metal smokestacks (except when securely fastened to walls of a masonry building,) radio or television towers and antennas, windmills, windchargers, outside erected signs or greenhouses, nor for loss caused by (a) blizzard or change in temperature, nor (b) by snowstorm; tidal wave, highwater or overflow, whether driven by wind or nor, unless the wind or hail shall first make an opening in the walls or roof of the described building, and shall be liable only for loss to the interior of the building or the insured property therein, caused immediately by rain entering the building through such openings.'

Under the Physical Loss Form Endorsement, plaintiff's exhibit No. 2, we find:

'The provisions of Section I 'Definitions', Section II, 'Special Conditions' and Section III, 'Special Coverage Conditions' of the Texas Standard Policy are each eliminated as to dwelling(s) described in the policy and in lieu thereof the provisions of this form shall apply.'

(This language is clear, comprehensive and free from all doubt).

We quote further from Section I of the Physical Loss Form Endorsement:

'COVERAGE: Subject to the provisions of this form and of the policy to which this form is attached including the endorsements thereon, this policy insures against all risks of physical loss to the described dwelling(s), building(s) or structure(s) covered under this form.'

(This provision is free from all doubt).

Also from the Physical Loss Form Endorsement, we quote from Section II:

'This policy does not insure against * * * C. Loss by earthquake, surface waters, flood waters, waves tide or tidal wave, high water or overflow of streams or bodies of water, all whether driven by wind or not, or whether caused by or attributable to earthquake; this exclusion, however, shall not apply to loss by fire or explosion caused by perils excluded in this paragraph, * * *'.

Again, we quote from the Physical Loss Form, and from Section III, C.:

'DEDUCTIBLES: * * * C. * * * On each separate loss resulting from wind driven rain or hurricane driven rain, there shall be deducted the sum of $50.00 or the sum shown in Line D below, whichever is the greater.'

So far as we have been able to find there is not a Texas case that defines the...