First Nat. Bank v. Cleland

• Decision Date: 25 June 1904
• Citation: 82 S.W. 337
• Parties: FIRST NAT. BANK OF HUBBARD v. CLELAND et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

82 S.W. 337

FIRST NAT. BANK OF HUBBARD v. CLELAND et al.^*

Court of Civil Appeals of Texas.

June 25, 1904.

Appeal from District Court, Camp County; P. A. Turner, Judge.

Action by T. W. Cleland and others against the First National Bank of Hubbard. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

Etheridge & Baker, Lee Frisby, and W. R. Heath, for appellant. Sam. D. Snodgrass and M. M. Smith, for appellees.

BOOKHOUT, J.

This is an action by T. W. Cleland, appellee, against appellant and the First National Bank of Pittsburg, Tex., one of the appellees herein, for the value of a certain policy of insurance issued to T. W. Cleland by the Western Assurance Company, in the sum of $1,200, alleged to have been converted by the defendants. There was a judgment in favor of plaintiff against appellant, and in favor of appellee First National Bank of Pittsburg, Tex., against plaintiff to reverse which judgment appellant has prosecuted this appeal.

The cause was tried by the court, and the following conclusions of fact filed, which we adopt: "(1) I find that T. W. Cleland commenced doing business as a retail liquor dealer in Hubbard City, Tex., about the 14th day of November, 1901, on which day he procured from the Western Assurance Company of Toronto, Canada, a policy of insurance for one year against fire—$300 on his bar, bar fixtures, etc., and $900 on his stock of liquor—for which he paid the premium. (2) I find that his entire stock of liquors and his bar and bar fixtures were entirely destroyed by fire on the 20th day of June, 1902. Notice of the fire and proof of the loss was made and furnished to the company as provided by the policy. (3) I find that the value of the bar, bar fixtures, etc., exceeded $300, and the stock of liquors, etc., exceeded $900, at the time they were destroyed by fire. (4) I find that T. W. Cleland and J. H. Cleland owed said First National Bank of Hubbard City the note for $400 and the small overdraft pleaded by said bank in its answer in this case. (5) I find that the policy of insurance for $1,200 was never pledged as collateral to secure said note for $400 due said bank before said fire, but I find that after the fire T. W. Cleland and J. H. Cleland agreed with the bank that it should be paid out of the first money collected on said policy, and that they had no other means to pay said bank, and that they are still willing for the bank to be paid out of said policy. (6) I find that the First National Bank of Hubbard City converted said policy of insurance to its own use on or before the 22d day of January, 1903, and that said policy was worth the sum of $1,200 at the time of said conversion. (6½) I find that the facts fail to bring this case within the provisions of the iron-safe clause, but, if it does come within the provisions of said clause, then I find that said provision was complied with. (7) I find that the Western Assurance Company of Toronto, Canada, is solvent, and is still doing business in this state, and that the president of the defendant bank in this case is its agent now, and is still issuing policies for said insurance company. (8) I find that the First National Bank of Pittsburg, Tex., has done nothing to render it liable for the conversion of said policy."

Upon these findings the court reached the conclusion that the plaintiff was entitled to judgment against the First National Bank of Hubbard City for the value of said policy at the time and place of conversion, which was $1,200, and interest thereon at 6 per cent. per annum from the 22d day of January, 1903, and costs, less the amount due said bank, principal, interest, and attorney fees, on said note for $400, and the overdraft pleaded in this case by the said bank, and rendered judgment accordingly.

The contention is raised under the first assignment that it was error to render judgment for $1,200, with interest thereon from January 22, 1903, because such interest is not in any wise alleged or claimed as damages in plaintiff's petition, or judgment asked therefor. If such interest is recoverable, it would amount to more than the sum prayed for in the pleadings. In the prayer to the petition the plaintiff asked for judgment "for his damages for the conversion of said policy, to wit, in the sum of $1,200, for costs of suit, and for general relief." Thus, it is seen that the amount of recovery asked for is limited to $1,200, and it was error to allow plaintiff a greater sum by way of interest. Texarkana Waterworks Co. v. Kizer (Tex. Civ. App.) 63 S. W. 913.

It is contended that this suit, as originally instituted, was to recover "possession of the policy of insurance, or for the...