Gulf Ins. Co. v. Carroll
| Decision Date | 02 December 1959 |
| Docket Number | No. 3697,3697 |
| Citation | 330 S.W.2d 227 |
| Parties | GULF INSURANCE COMPANY, Appellant, v. F. D. CARROLL et ux., Appellees. |
| Court | Texas Court of Appeals |
Thompson, Coe & Cousins, I. L. Allen, Dallas, for appellant.
Warwick H. Jenkins, Waxahachie, for appellee.
Plaintiffs grounded their cause of action on a Texas Standard Policy of Insurance providing coverage against fire and additional named perils, including windstorm and hail. They specifically alleged that the damage to their house described in the policy was due to windstorm, hail and rain that occurred on or about April 21, 1958. Defendant filed a plea in abatement based on the appraisal procedure described in the policy, and he alleged the performance of which was a condition precedent to suit on the policy. On pretrial the Court ordered plea in abatement tried to the jury along with the cause on its merits; the Court overruled plaintiffs' motion to suppress certain testimony and overruled all the exceptions contained in defendant's first supplemental answer and plaintiffs' first supplemental petition, except Special Exception by the defendant contained in paragraph 4 in its first supplemental answer, which is not pertinent here. Defendant, Waxahachie Bank & Trust Company filed a waiver and asked that it be dismissed and such motion was granted. The Court overruled defendant's exceptions to its charge, and submitted seven issues to the jury. These issues are, absent the burden of proof clause, substantially as follows, do you find:
(1) That plaintiffs' house was damaged on or about April 21, 1958, as a direct result of hail and windstorm?
Answer: Yes.
(2) What sum of money, if any, do you find from a preponderance of the evidence would be the actual and necessary cost of repairing and replacing the plaintiffs' property so damaged, if any, with material of like kind and quality within a reasonable time after such loss, if any?
Answer: $850.00.
(3) That immediately after said damage, if any, plaintiffs notified defendant, its agent, servant or employees of the amount thereof?
Answer: Yes.
(4) That after such notification, if any, the defendant, its agent, servants, or employees denied and refused to pay said claim or any part thereof?
Answer: Yes.
(5) That after such loss, if any, the plaintiffs did not make an effort to enter into an appraisal of said loss, if any?
'Let the form of your answer be 'They did make an effort to enter into an appraisal,' or 'They did not make an effort to enter into an appraisal."
Answer: They did make an effort to enter into an appraisal.
(6) That the defendant, its agents, servants or employees waited an unreasonable length of time before making a request for an appraisal of the plaintiffs' loss, if any, by a representative of each party?
Answer: Yes.
(7) That after said loss, if any, the plaintiffs furnished the defendant, its agents, servants or employees all information in regard thereto that was desired by the defendant, its agents, servants or employees?
Answer: Yes.
The Court overruled defendant's motion for judgment and granted plaintiffs' motion for judgment, and defendant seasonably filed its amended motion for new trial, and it being overruled perfected its appeal to this Court.
The judgment is assailed on what defendant designates as 4 points, they are substantially to the effect that the Court erred:
(1) In overruling defendant's plea in abatement at the close of evidence, for the reason that the undisputed evidence showed that plaintiffs' suit was prematurely brought;
(2) In admitting improper questions and answers asked of and given by the plaintiffs regarding efforts of settlement and compromise between the parties;
(3) In rendering judgment for the plaintiffs for the reason that the plaintiffs did not obtain a jury finding and did not discharge their burden of proof as to whether on the occasion described, the wind or hail had first made an opening in the walls or roof of the building, thereby immediately allowing rain to enter the building through such openings;
(4) In rendering judgment for plaintiffs because the plaintiffs failed to submit evidence and failed to obtain jury findings upon the proper measure of recovery under the contract of insurance.
Most of the controlling facts here are without dispute. The policy in suit, among other things provided, Conditions Applicable Only to Windstorm, Hurricane and Hail:
'Unless specifically named hereon, this company shall not be liable for * * * any loss caused by rain, whether driven by wind or not, unless the wind or hail shall first make an opening in the walls or roof of the described building, and shall then be liable for loss to the interior of the building, or the insured property therein, caused immediately by rain entering the building through such openings.'
In defendant's pleadings on which it went to trial it specifically alleged:
'* * * that any loss alleged by the Plaintiff which is alleged to be caused by rain in the interior of the house was not caused immediately by rain entering the building through openings which were made at the time alleged and described in the Plaintiffs' petition, and such openings, if any there were, were caused at times prior to the occurrence alleged in the petition of the Plaintiffs.'
Testimony was tendered to the effect that plaintiffs' loss occurred on April 21, 1958, and that notice was immediately given by plaintiffs to the insurance company. Mr. Blackwell, an insurance adjuster, testified that he went out to the residence of plaintiffs about April 23, for the purpose of making an inspection of the claimed loss and that no one was home, but that he had a ladder with him and that he climbed upon the ladder so that he could see the roof, but since no one was home he made no attempt to go in; that from his experience as an adjuster, which was some 25 years, he could not find any evidence of any hail or wind damage to the shingles but that the shingles were just old and worn and that the cracks or splits in the shingles were caused by the sun; he said it was 'just plain weathering.' He identified the roof as being covered in part by wooden shingles and in part by composition; that he made a second trip and found no one at home; that the third trip he made was some time between the 5th and 15th of May, and at which time he found Mr. and Mrs. Carroll home; that he went in and made an inspection. He testified specifically:
'Q. Do you carry proof of loss forms for Gulf Insurance Company with you? A. I have proof of loss forms. They are not Gulf Insurance Company.
'Q. Well, do you have them that Gulf Insurance Company will receive and accept? A. If I send it in with my recommendation, they would.
'Q. That is what I mean. If you accept liability for the company and work out a settlement or propose a settlement, if you and the owner are working it out together, then you go ahead and make out a proof of loss and have him sign it in ordinary cases? A. Ordinarily that is the system.
'Q. But in a case where you deny liability under the terms of the policy or you state that 'We can't help you because the deductible is too much,' you don't have any occasion to make out proof of loss forms? A. That is right.
'Q. And you don't do it because in effect you have said, 'We don't owe you anything and we are not going to pay you'? A. When we think the loss is under a hundred dollars, that is ordinarily all there is to it.
* * *
The record shows that more than four months expired from the date of the claimed loss of April 21st, and notice thereof before the insurance company made its demand for appraisal on August 22, 1958. On the foregoing date appellant wrote plaintiffs; we quote the pertinent part:
'Due to the wide difference of opinion as to the amount of loss and damage, if any, sustained to your dwelling, the Gulf Insurance Company of Dallas, Texas, is demanding an appraisal of your loss and damage.'
In reply plaintiffs' attorney, on August 26th, wrote the carrier:
'Your letter to Mr. F. D. Carroll, regarding his claim for loss and damages resulting from storm and hail on April 21, 1958, wherein you demand appraisal under the terms of your contract, has been turned over to us for appropriate attention.
'It appears from your letter that you have revised your earlier position that you have no liability in this case; your agent and representative, Mr. Blackwell, has made the statement both to Mr. Carroll and to others that he 'has no claim', and in view of this statement and your subsequent actions, we think it well established that this amounts to a denial of liability.
'Further, it is our opinion that under the law you have waived your right to demand compliance with this provision of the contract, by your inattention to the claim and your very obvious lack of effort to make a bona fide effort to settle the claim. So far as we know, there has never been any offer in any amount, either to Mr. Carroll or to anyone else, and your own agent in Waxahachie will verify this.
'In addition, it appears that you are not entitled to make this demand by reason of the passage of time since the claim was first presented to you and your adjuster made his investigation.
'However, if we are wrong in all of this, and if in fact you have considered it a valid claim and have made bona fide efforts to settle it, we would like to know the facts. Assuming that they are of such a nature as to establish your bona fide acceptance of liability, and efforts to settle, we...
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