Georgia Home Ins. Co. v. Moriarty

• Decision Date: 23 May 1896
• Citation: 37 S.W. 628
• Parties: GEORGIA HOME INS. CO. v. MORIARTY.
• Court: Texas Court of Appeals

37 S.W. 628

GEORGIA HOME INS. CO. v. MORIARTY.

Court of Civil Appeals of Texas.

May 23, 1896.

Error from district court, Johnson county; J. M. Hall, Judge.

Action by T. Moriarty against the Georgia Home Insurance Company. From a judgment in favor of the plaintiff, defendant brings error. Affirmed.

Morgan & Thompson, for plaintiff in error. Poindexter & Padelford, for defendant in error.

Conclusions of Fact.

RAINEY, J.

(1) The plaintiff, T. Moriarty, and one E. A. O'Keefe were partners in the saloon business in the town of Cleburne, Tex., each owning a half interest therein, and on April 19, 1892, obtained from defendant, through its local agent at Cleburne (P. J. Norwood), the policy of insurance herein sued upon, said policy being for the sum of $1,200 and covering saloon fixtures, the stock of liquors, and other merchandise owned and carried by said partners in their said saloon, and which said policy, in terms, insures only the plaintiff. It was intended by him and his partner, O'Keefe, to be for their joint benefit, and was issued to them by said Norwood with the distinct understanding and agreement between them and the said Norwood that the property insured belonged to both of them, and that the policy was to be for their joint benefit, although issued in Moriarty's name only.

(2) In August, 1892, O'Keefe, with the knowledge and consent of Moriarty, sold his half interest in said insured property to one David McClousky, who thereupon formed a partnership with Moriarty; and the business was run by Moriarty & McClousky as partners from that time until September 29, 1892, when the entire stock then on hand was destroyed by fire. The policy provided that, if any change took place in the title to the property, the policy should be void.

(3) That defendant had no notice until after the fire of the aforesaid sale by O'Keefe to McClousky.

(4) While said sale by O'Keefe to McClousky was being negotiated, the plaintiff, in anticipation of such sale, gave a mortgage upon the property to Casey & Swasey, wholesale liquor dealers of Ft. Worth, Tex., who were the largest creditors of Moriarty & O'Keefe.

(5) McClousky was insolvent, and, in consequence thereof, plaintiff, soon after the fire, —but exactly when does not appear,—made an agreement with McClousky whereby the plaintiff was to pay all debts of the firm amounting to $1,280 or $1,380, and to be entitled to all the proceeds of the policy herein sued upon, as well as a policy of $1,000 in the United States Insurance Company, which covered the bar, fixtures, and furniture.

(6) After the fire the plaintiff, on October 1, 1892, transferred to the aforesaid Casey & Swasey, who were the largest creditors, for the purpose of securing the debt due them, the policy herein sued on, as well as the said policy for $1,000 in the United States Insurance Company.

(7) In the year 1893 (in September, according to Casey's testimony; in February, according to Moriarty's testimony) the plaintiff discharged said indebtedness to Casey & Swasey by transferring to them certain real estate. Casey & Swasey claim no interest in the policy now, but until said debt was paid they held said policies, and were authorized to collect them.

(8) On October 13, 1892, Mr. W. Hugh Hunter, defendant's special agent and adjuster for Texas, and a Mr. Stowe, an adjuster representing the United States Insurance Company, were in Cleburne, and examined the plaintiff under oath in regard to his loss by the aforesaid fire of September 29, 1892. The questions propounded to him by them, and his answers thereto, were reduced to writing, and signed and sworn to by plaintiff. This document is set out in full in the statement of facts. In said examination, plaintiff communicated to said Hunter all the facts which the insurance company claimed breached the policy. After the examination was over, Hunter, without intimating to plaintiff that a forfeiture of the policy would be claimed, when asked by plaintiff what was necessary for him to do to get his money, replied that "all he would have to do would be to get up his bills and proofs of loss."

(9) On the day after said examination, Hunter went to Ft. Worth, where he had some conversation with Casey & Swasey in reference to the loss, but what this conversation was does not appear in the record.

(10) On October 17, 1892, Mr. Hunter wrote to Casey & Swasey the following letter: "Dallas, Texas, October 18, 1892. Messrs. Casey & Swasey, Forth Worth, Texas—Gentlemen: Allow me to apologize to you for not returning to your office as I promised to do; but I met some friends who were going to Dallas, so I went with them, leaving your city earlier than I intended. However, I could not have done anything in the Moriarty case. I will have to lay the facts I have gathered before the company. In the meantime, if Mr. Moriarty thinks he has any claim against the company, he can make up his proofs as required by the conditions of the policy, and forward to me. Yours very respectfully, W. Hugh Hunter, S. A."

(11) On October 18 and 27, 1892, Casey & Swasey wrote to Hunter, urging a settlement of the claim. On October 31, 1892, Hunter wrote to Casey & Swasey, in reply to their letter of 27th October, that his company had left the settlement of the matter with him, and used this language: "That, if Mr. Moriarty thinks he has any claim against this company, he can make out his proofs as required in the conditions of the policy. In making this suggestion, I neither admit or deny liability on the part of this company, nor do I waive any right we have under the policy. We reserve all rights accorded under the contract." At the same time Hunter wrote to Moriarty, in substance, what was written to Casey & Swasey. On November 1, 1892, Casey & Swasey wrote to Hunter that they would have Moriarty to make affidavit to his loss and send it in right away. On November 4th Moriarty wrote to Hunter as follows: "In reply to yours of October 31, I inclose you statement of my loss, together with bills and invoices of original purchases, as per your request. I would be pleased to have the matter adjusted at an early date, and ask to hear from you promptly. I have moved from Cleburne to Fort Worth, and you can address me at the latter place, care Casey & Swasey. If you have any regular forms of loss which you want filled out, I will take pleasure in doing so. Awaiting your early attention in the premises, I am, yours, respectfully, T. Moriarty." This last letter, while signed by the plaintiff, was really written by Casey & Swasey. The statement mentioned in the letter was inclosed therein. No reply was made to this letter by Hunter. On November 22, 1892, the plaintiff again wrote to Hunter in regard to the loss, which letter is as follows: "I write to ask if you think we can arrive at a settlement of my loss in your company, or if it is your wish that I establish my claim by process of law. In the event you think we cannot arrive at a settlement in the matter, kindly advise me, so that I shall know how to act. If you will let me hear from you, or will come over to see me, I have no doubt but that we can arrive at a settlement. I want the matter settled one way or another, and, in the event you think I have no claim against your company, I desire to take action, and let the courts see and determine whether I have or not. Kindly let me hear from you in the premises, and oblige," etc. No response was made to this letter. On December 21, 1892, Casey & Swasey wrote to Hunter, seeking an adjustment of the matter. On December 24, 1892, Hunter wrote to Casey & Swasey as follows: "In reference to the loss of T. Moriarty, at Cleburne, I beg to say that as he has failed to make any proofs of loss under the Georgia Home Insurance policy, as required by the conditions of same, I am not in position to make any offer of compromise whatever, and do not admit any liability under our policy No. 176,043."

(12) In reference to the proofs of loss, the policy contained this provision: "In case of loss the assured shall give immediate notice thereof, and shall render to the company a particular account of said loss, under oath, stating the time, origin, and circumstances of the fire, the occupancy of the building insured, other insurance, if any, and copies of all policies, the whole loss or damage, and shall produce the certificate, under seal, of a magistrate, notary public, or commissioner of deeds nearest the place of the fire, and not concerned in the loss nor related to the assured, stating that he has examined the circumstances attending the loss, knows the character and circumstances of the assured, and verily believes that the assured has, without fraud, sustained the loss on the property insured, to the amount claimed by the said assured."

(13) The matter rested in this shape until July 10, 1893, when, upon advice of attorneys whom he had employed to present the claim, plaintiff swore to, and mailed to Mr. Hunter, the following document:

"Cleburne, Texas, July 10, 1893. W. Hugh Hunter, Dallas, Texas, Special Agent for the Georgia Home Insurance Company for Texas: The undersigned makes oath,...