Fire Ass'n of Philadelphia v. American Cement P. Co.

• Decision Date: 14 January 1905
• Citation: 84 S.W. 1115
• Parties: FIRE ASS'N OF PHILADELPHIA et al. v. AMERICAN CEMENT PLASTER CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

84 S.W. 1115

FIRE ASS'N OF PHILADELPHIA et al. v. AMERICAN CEMENT PLASTER CO.^*

Court of Civil Appeals of Texas.

January 14, 1905.

Appeal from District Court, Hardeman County; S. P. Huff, Judge.

Action by the Fire Association of Philadelphia and others against the American Cement Plaster Company to cancel certain insurance policies, in which defendant filed a cross-petition for damages under the policy. From a judgment in favor of defendant on the cross-petition, plaintiffs appeal. Reversed.

Crane & Gilbert and J. N. Wharton, for appellants. M. M. Hankins and Bishop & Mitchell, for appellee.

SPEER, J.

The Fire Association of Philadelphia and the Scottish Union & National Insurance Company instituted suits in the district court of Hardeman county against the American Cement Plaster Company to cancel two certain policies of insurance for $1,000 each, written by these companies upon property of the cement plaster company in Hardeman county, because of alleged misrepresentations of fact made by the defendant company in reference to the ownership of the real estate upon which the insured property was situated. It was alleged that the defendant company was not the owner of the property in fee simple, and that there were incumbrances upon the land which made the policies void. The American Cement Plaster Company answered these suits, and, the property having been destroyed by fire, sought a recovery upon each of them. Answering these cross-bills, the plaintiffs filed supplemental petitions, in which they set up the following matters of defense: That the said policies contained a stipulation that "this entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance or the subject thereof; or if the interest of the insured in the property be not truly stated herein, or in case of fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after a loss." The supplemental petitions set forth the application made by the agent of the defendant company for said policies, stating, among other things, that there were no incumbrances on the property by mechanic's lien, judgment, mortgage, or otherwise, and concluding as follows: "The applicant hereby covenants and agrees to and with the said company that the foregoing is a just, full, and true expression of all the facts and circumstances in regard to the property heretofore mentioned, and said answers and representations are considered the basis on which insurance is to be effected, and the same is understood as incorporated in and form a part of the policy, and further covenant and agree that if the situation or circumstances are changed or hazard increased, or property becomes incumbered in any manner during the term of any policy or policies of insurance of said company covering the said property or any renewal of said policy or policies, will notify the said company forthwith of such alteration, increase of hazard or incumbrance, and hereby declare and acknowledge that this is the act and statement of the owner of said property, and warranty on the part of the assured, whether the answers have been written by the applicant in person or not, dated August 24, 1900. American Cement Plaster Company, Owner and Applicant, per C. H. Newby, Supt." The insurance companies also pleaded that the defendant company, by its general manager, made sworn proofs of loss of the property by fire, in which he stated that the property was not incumbered; that such statements were false, and known to be false when made. Upon these grounds, and others pleaded, but not necessary here to notice, it was alleged that the policies were breached, and the appellant companies not liable upon them. The defendant denied that there was any written application for insurance made by it; that the agent of the insurance companies soliciting the insurance was informed and knew of the true condition of the title to the lands upon which the insured property stood; that C. H. Newby, who signed the pretended application for insurance, was not authorized so to do; and denied any misrepresentations whatever in obtaining the policies declared...