Greenfeld v. San Jacinto Ins. Co.

• Court: Texas Civil Court of Appeals
• Writing for the Court: WOODRUFF
• Citation: Greenfeld v. San Jacinto Ins. Co., 319 S.W.2d 134 (Tex. Ct. App. 1958)
• Decision Date: 04 December 1958
• Docket Number: No. 13333,13333
• Parties: Elias GREENFELD, Appellant, v. SAN JACINTO INSURANCE COMPANY, Appellee.

Page 134

319 S.W.2d 134

Elias GREENFELD, Appellant, v. SAN JACINTO INSURANCE COMPANY, Appellee.

No. 13333.

Court of Civil Appeals of Texas, Houston.

Dec. 4, 1958.

Billy B. Goldberg and Charles E. Heidingsfelder, Jr., Houston, for appellant.

Painter & Painter and J. H. Painter, Jr., Houston, for appellee.

WOODRUFF, Justice.

This suit was instituted by the appellant, Elias Greenfeld, to recover from appellee, San Jacinto Insurance Company, on an insurance policy issued to appellant for fire damage done to the merchandise, furniture and fixtures located in the appellant's store. In a trial before the court without a jury, evidence was offered by appellee which showed that appellant started the fire intentionally, and after both parties rested judgment was entered by the court denying appellant a recovery. Having duly excepted to the ruling of the court appellant perfected this appeal. Neither party requested Findings of Fact or Conclusions of Law.

Appellant rests his appeal upon two points of error. First, he contends that the trial court erred in admitting evidence over his objection that he intentionally started the fire to collect the insurance, because there was no affirmative pleading by appellee raising such issue; and second, he urges there was no competent evidence in the record to support such judgment.

Appellee's answer, in addition to the general denial, contains the following verified special plea:

'Defendant specially denies that the loss herein sued upon occured in the manner and in the fashion covered by such policy of insurance and says specifically that same occured by virtue of certain acts of deed or happenings which were not covered by said policy. * * *'

No special exception was filed to this pleading.

After the insurance policy had been tendered into evidence and appellant had testified to the loss occasioned by the fire, appellee offered as a witness Harry Foster, an investigator for the City of Houston. He stated that a short time after the fire he talked to appellant, and, over appellant's objection that there was no pleading to support such testimony, he testified that appellant told him that he had started the fire. The witness then produced a written statement signed by appellant which the witness said had been taken by him from appellant, and, over appellant's objection that it had not been shown that the proper warning had been given to appellant before it was made, the statement was admitted in evidence. It contained an extensive recitation of appellant's personal history which ultimately led to his going into business. It also recited that his business later became involved in financial difficulties and he then decided to set it on fire to collect fire insurance. On the Saturday night of the fire, so the statement reflected, he decided to set the place on fire and just before he closed he dumped the contents of an ashtray, including a lighted cigarette, into a pasteboard box under the counter which contained an accumulation of paper. This was about three minutes to 8 p. m., shortly before closing time on the night it burned. When he dumped the tray with the lighted cigarette into this box, so the statement reflects, his intentions were to set these papers on fire in the trash box and cause a lot of smoke and fire damage to his store so he could collect his fire insurance. The store burned shortly after he reached his house that evening.

Appellant, by his first Point, contends that the trial court erred in admitting the evidence and in basing its judgment thereon because there was no affirmative pleading by appellee raising such issue.

It should be observed here that the defense relied on by appellee is not dependent upon any provision of the insurance policy. Public policy will not permit a recovery by the insured who knowingly burns insured property in order to collect the insurance thereon. The universal acceptance of this rule is pointed out in the decisions of the Supreme Court of the United States in Columbia Insurance Co. of Alexandria v. Lawrence, 10 Pet. 507, 9 L.Ed. 512, and Ritter v. Mutual Life Ins. Co., 169 U.S. 139, 18 S.Ct. 300, 42 L.Ed. 693. In the latter case Mr. Justice Harlan, speaking for the Court, said: (quoting from Supreme Commandery of Knights of Golden Rule v. Ainsworth, 71 Ala. 436)

"In all contracts of insurance, there is an implied understanding or agreement that the risks insured against are such as the thing insured, whether it is property, or health, or life, is usually subject to, and the assured cannot voluntarily and intentionally vary them. Upon principles of public policy and morals, the fraud, or the criminal misconduct of the assured is, in contracts of marine or of fire insurance, an implied exception to the liability of the insurer. * * *"

The same rule obtains in this State. In Jones v. Fidelity & Guaranty Ins. Corp., Tex.Civ.App., 250 S.W.2d 281, writ ref., it was said:

'Fraudulent losses are generally excepted from the coverage of fire insurance contracts upon grounds of public policy and morals. Accordingly, the voluntary and intentional burning of insured property by the insured does not ordinarily give rise to a cause of action for the recovery of loss resulting from the fire, even though such loss is not expressly excepted from the coverage of the policy. * * *

'Therefore, we hold that the act of arson on the part of appellant's former husband (one of the insured) rendered the entire policy here sued upon void and deprived appellant of any lawful right of recovery herein.' (parenthesis ours)

Inasmuch as the defense of this case was not dependent upon any provision of the contract, we are not concerned with the last sentence of Rule 94, Texas Rules of Civil Procedure. The first sentence of that Rule, however, provides that in pleading to a preceding pleading a party shall set forth affirmatively certain defenses there stated including 'illegality' and matters

'CONSTITUTING AN AVOIDANCE OR AFFIRMATIVE Defense.'

In discussing appellee's answer we believe that we should take notice of several well established rules which must be observed in construing pleadings to which no special exception has been leveled. The rule is well settled that in the absence of special exception a petition will be liberally construed in favor of the pleader and to support the judgment. Scott v. Gardner, 137 Tex. 628, 156 S.W.2d 513, 141 A.L.R. 50; Labay v. Amicable Life Ins. Co., Tex.Civ.App., 261 S.W.2d 476. Substantially the same rule is applicable to the defendant's pleadings on the accepted theory that every reasonable intendment of the pleader must be indulged. Texas Wine & Liquor Co. v. Willis, Tex.Civ.App., 239 S.W.2d 695; Sigel v. Buccaneer Hotel Co., Civ.App., 40 S.W.2d 168, writ ref.; Anderson v. First National Bank, Tex.Civ.App., 191 S.W. 836, error dis.; Roberts v. Anthony, Tex.Civ.App., 185 S.W. 423.

Referring now to the answer, it states that 'The Defendant specially denies that the loss herein sued upon occured in the manner and fashion covered by such policy of insurance.' Following this special denial is the affirmative plea reading, 'and says specifically that same occured by virtue of certain acts of deed or happenings which were not covered by said policy.'

Indulging the pleader with every reasonable intendment, as we must in the absence of a speciall exception, we are of the opinion that the special denial clearly denied that the loss sued upon, which by every reasonable intendment includes the fire that caused it, occurred within the terms of the policy. And, passing to the affirmative plea, we are of the opinion that by following the same rule it specially pled that the loss and fire which caused it occurred by virtue of certain affirmative acts of a person or persons which were not covered by the policy. An 'act of deed', given reasonable intendment, compels the meaning of an affirmative act.

In support of his contention appellant cites three cases. The first is Collins v. English, Tex.Civ.App., 157 S.W.2d 155. This case, as the opinion reflects, was tried in the District Court before the New Rules of Practice and Procedure became effective and consequently its holding is of no assistance. Also cited is Jones v. Allen, Tex.Civ.App., 294 S.W.2d 259...