German Ins. Co. v. Luckett

• Decision Date: 18 January 1896
• Citation: 34 S.W. 173
• Parties: GERMAN INS. CO. v. LUCKETT.
• Court: Texas Court of Appeals

34 S.W. 173

GERMAN INS. CO. v. LUCKETT.

Court of Civil Appeals of Texas.

January 18, 1896.

Appeal from district court, Tarrant county; W. D. Harris, Judge.

Suit by A. P. Luckett against the German Insurance Company to recover on a policy of fire insurance. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Carter & Lewright and Oeland & Smith, for appellant. W. S. Essex, for appellee.

Conclusions of Fact.

TARLTON, C. J.

The verdict of the jury requires from us the following conclusions of fact upon the issues presented on this appeal: On March 10, 1892, the appellant, in consideration of the premium of $12, issued to Mrs. Augusta Ault, who was the wife of J. A. Ault, its policy of insurance No. 62,727, whereby it insured, for the period of one year, and in a sum not exceeding $1,000, certain property, situated in a named dwelling house, described as follows: "Household and kitchen furniture, useful and ornamental, beds, bedding, linen, wearing apparel of self and family, printed books, pictures, paintings, and their frames (at not exceeding cost), silver and plated ware, watches and jewels, china, glass, and crockery ware, mirrors, printed music, musical instruments, umbrellas, canes, traveling equipments, opera glasses, sewing machines, family stores, and all articles generally used in housekeeping." The property covered by the policy had been acquired by J. A. Ault and his wife, Augusta, during their marriage, which had occurred some nine years prior to the date of the policy. Of this fact the agent of the company was apprised when he issued the policy to Mrs. Augusta Ault. About 10 o'clock p. m., September 20, 1892, the house containing the property insured was ignited, from some cause for which the assured was not responsible, and the articles insured were destroyed or damaged. The policy contains the stipulation that, "if the property above described is encumbered in any manner, it must be so represented to this company, and expressed in this policy in writing; otherwise, this insurance contract shall be void and of no effect." Among the articles in the house at the date of the policy, and of the fire, was a piano, which, at both the dates, was under a chattel mortgage. Of the existence of the mortgage the agent who issued the policy was informed by the husband, J. A. Ault, when the policy was executed. The assured furnished proofs of loss, in accordance with the terms of the policy. The latter also contained a provision to the effect that, unless suit should be brought upon the policy within six months after the fire, it should not be sustained, and that after that period the lapse of time should be deemed conclusive evidence against the validity of any claim sought under the policy to be enforced, any statute of limitation to the contrary notwithstanding. The appellee, Luckett, having by assignment become the owner of the policy, brought this suit, on August 31, 1893. He recovered a verdict and judgment in the sum of $1,000, the amount of the policy, besides interest, from which this appeal is taken. Excluding the loss incident to the destruction of the piano above mentioned, the damage due to the destruction or injury of the remaining property—undoubtedly covered by the terms of the policy—exceeded the amount of the verdict and judgment.

Opinion.

Though the suit was brought more than one year after the fire, the stipulation in the policy limiting the time to the period of six months, within which the action shall be instituted, cannot avail the appellant. This provision in the policy is in direct contravention of the act of March 4, 1891, forbidding stipulations for a period of time less than two years in which to sue. This act applies as well to insurance policies as to other species of contracts. In terms it includes "any stipulation, contract, or agreement."

Nor can the provisions of the act affecting the question here presented be assailed as violative of section 35, art. 3, of the state constitution. This provides that: "No bill (except general appropriation bills, which may embrace the various subjects and accounts for and on account of which moneys are appropriated) shall contain more than one subject, which shall be expressed in its title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed." Giving, as we must, a liberal interpretation to this provision, we think that the subject of the enactment is the same in both sections, viz. a limitation upon stipulations in contracts; that the provisions of each section are appropriately connected with the general subject of the statute, which is sufficiently expressed in the title; and that the matters referred to in the two sections of the act are but different phases of the same subject, as expressed in its title. Nothing is found in the body of the act itself that does not come within the subject as indicated by the title, or which could cause "surprise, misapprehension, or deception" as to the provisions of the act. We are not prepared to condemn the act as unconstitutional. State v. McCracken, 42 Tex. 384; Giddings v. City of San Antonio, 47 Tex. 548; Breen v. Railway Co., 44 Tex. 306; Stone v. Brown, 54 Tex. 330.

The defendant pleaded the incumbrance clause, already set out in our conclusions of fact, alleging the existence of the mortgage, and seeking to avoid the policy on this ground....