Fidelity Union Fire Ins. Co. v. Pruitt, (No. 1302-5382.)
| Decision Date | 05 February 1930 |
| Docket Number | (No. 1302-5382.) |
| Citation | 23 S.W.2d 681 |
| Parties | FIDELITY UNION FIRE INS. CO. v. PRUITT. |
| Court | Texas Supreme Court |
Action by J. F. Pruitt against the Fidelity Union Fire Insurance Company. Judgment for plaintiff was affirmed by the Court of Civil Appeals , and defendant brings error. Reversed and remanded.
Collins & Houston, of Dallas, for plaintiff in error.
Ross M. Scott and J. E. Gilbert, both of Dallas, for defendant in error.
The defendant in error, J. F. Pruitt, filed this suit in the district court of Dallas county, Tex., against Fidelity Union Fire Insurance Company, a corporation, to recover on a certain fire insurance policy alleged to have been issued by the insurance company covering a certain building owned by Pruitt. It was alleged that the policy was for $2,000, and was in favor of Pruitt as owner, and also in favor of Mrs. Florence Scott, as a first lienholder, as her interest may appear, and the Standard Lumber & Manufacturing Company, a second lienholder, as its interest may appear.
The insurance company answered the petition of Pruitt, alleging that it had paid the full amount of the policy to the two lien-holding beneficiaries above named as having interests, and had therefore discharged its full liability thereon according to its terms.
The insurance company also filed a cross-action against Pruitt, and as a basis therefor pleaded, in substance: That when the building burned it paid the $2,000 provided for by the policy to the lienholders in the order above named, and took assignments of their notes, and liens securing same, and asserted the right to foreclose these liens on the lot on which the house insured by it had stood.
The insurance company, as a basis for said cross-action, and the right to foreclose such alleged liens, pleaded a provision in the policy of insurance, as follows: "On payment to such mortgagee (or trustee) of any sum for loss or damage hereunder, if this Company shall claim that as to the mortgagor or owner, no liability existed, it shall, to the extent of such payment be subrogated to the mortgagee's (or trustee's) right of recovery and claim upon the collateral to the mortgage debt, but without impairing the mortgagee's (or trustee's) right to sue, or it may pay the mortgage debt and require an assignment thereof and of the mortgage."
The insurance company further pleaded that the policy of insurance stipulated that the house covered by such policy should be occupied by the owner, and that the owner never occupied same, and by reason thereof the policy became void as to the owner, but was nevertheless valid and binding as to the mortgagee beneficiaries.
The trial court refused the relief sought by the insurance company on its cross-action, and denied it a foreclosure of any lien on the lot in question, and also refused Pruitt any recovery on the policy on the ground that the full amount thereof had been paid to the two lienholders who were entitled to receive such proceeds. The insurance company appealed to the Court of Civil Appeals for the Fifth District at Dallas, which court in all things affirmed the judgment of the trial court. 13 S.W.(2d) 717. The case is now before the Supreme Court on writ of error granted on application of the insurance company.
Trial was had in the district court before the court without the intervention of a jury, and after the evidence and argument of counsel had been had, and the court had announced his decision and judgment, the insurance company at the proper time duly and legally requested the trial judge to prepare and file his findings of fact, and conclusions of law, which he failed to do; to all of which the insurance company excepted, and filed its proper bill of exceptions duly approved by the trial court.
On this record as stated, we are confronted with one question, raised by proper assignments in this court, which is: Can we affirmatively and conclusively say, from the record before us, that the insurance company was not injured by the failure of the trial judge to file findings of fact and conclusions of law, as requested by the insurance company, and required under the provisions of article 2208, R. C. S. of Texas 1925?
If the above question is answered in the affirmative, this case should be affirmed; if it is answered in the negative, it should be reversed. Galveston, H. & S. A. Ry. Co. v. Stewart & Threadgill (Tex. Com. App.) 257 S. W. 526. An examination of the above case will show that the Supreme Court did not expressly approve the holding of the Commission with reference to this matter, but the rule of law there announced is undoubtedly correct, and must have met the approval of the Supreme Court, else it would not have entered the judgment recommended by the Commission.
In the instant case no statement of facts is brought up,...
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