Guinn v. Phoenix Ins. Co. of Brooklyn

• Decision Date: 18 October 1893
• Citation: 31 S.W. 566
• Parties: GUINN v. PHOENIX INS. CO. OF BROOKLYN.
• Court: Texas Court of Appeals

31 S.W. 566

GUINN v. PHOENIX INS. CO. OF BROOKLYN.

Court of Civil Appeals of Texas.

October 18, 1893.

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

Action on a policy of insurance by J. E. Guinn against the Phoenix Insurance Company of Brooklyn. Plaintiff appeals from a judgment for defendant. Affirmed.

The following conclusions of fact and of law were found by the court below:

"Conclusions of fact: (1) The court finds: That the policy of insurance sued upon was issued by the defendant to plaintiff, and that the building therein described was destroyed by fire about July 3, 1890. That the plaintiff furnished proofs of loss to the defendant more than sixty days prior to the institution of this suit. That shortly after the destruction of the property the adjuster and agent of the defendant went to the place where the fire occurred, and proceeded, and had made a builder's estimate of the value of the building. That the policy of insurance contains, among other things, in substance, the following provision: `If the assured shall have or shall hereafter make any other contract of insurance, whether valid or not, on the property herein described, or any part thereof, without the consent of the company written thereon, that then and in every such case the policy shall thereby be rendered void.' That in said policy it is also provided, in substance: `If the interest of the assured in the property be other than an absolute, fee-simple title, or if any other person or persons have any interest whatever in the property described, whether it be real estate or personal property, or if there be a mortgage or other incumbrance thereon, whether inquired about or not, it must be so represented to the company, and so expressed in the written part of the policy; otherwise the policy shall be void.' (2) That prior to the issuance of the policy herein sued upon a policy payable to the plaintiff was issued by the Hartford Fire Insurance Company, covering the same building covered by the policy of insurance herein sued upon, it being for the amount of $500 on said building. That there was on said last policy a written memorandum providing that the loss, if any, should be payable to the J. B. Watkins Land & Mortgage Company, mortgagee, as its interest might appear. That, at the time of the issuance of the policy herein sued upon, $500 additional insurance was permitted. That at the time of the issuance of the policy sued upon the plaintiff stated to the agent of the defendant that he had $300 insurance in the Hartford Fire Insurance Company, on the building. That he at the time thought that was the amount specified in the policy issued by the Hartford, and made the statement with no fraudulent intention. (3) That at the time of the issuance of the policy the land and premises, including the building described in said policy, was incumbered by a purchase-money note for the sum of $2,600, exclusive of interest, the payment of said note being secured by a vendor's lien retained in the deed and in the note given for said $2,600. That the said note and lien were transferred to the J. B. Watkins Land & Mortgage Company, and that the defendant did not know, until after the destruction of the property covered by the policy, that the policy for $500 had been issued to the plaintiff by the Hartford Fire Insurance Company on the building, and that at the time of the issuance of said policy the defendant did not know that a purchase-money note for $2,600 was outstanding, and had no knowledge of the lien securing its payment. That, at the time of the...