Hamburg-Bremen Fire Ins. Co. v. Garlington

• Decision Date: 20 April 1886
• Citation: 18 S.W. 337
• Parties: HAMBURG-BREMEN FIRE INS. CO. v. GARLINGTON.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Supreme Court

18 S.W. 337

HAMBURG-BREMEN FIRE INS. CO. v. GARLINGTON.¹

Supreme Court of Texas.

April 20, 1886.

Appeal from district court, Dallas county; GEORGE N. ALDRIDGE, Judge.

Action by M. D. Garlington against the Hamburg-Bremen Fire Insurance Company on a policy of insurance for $1,000. The policy was issued January 23, 1884, on a "two-story frame building occupied as a boarding-house" in the city of Dallas. On the next day the building was destroyed by fire. The building had been damaged by fire on January 4, 1884, and had not been repaired when it was insured, on January 23d. After the fire of January 24th, plaintiff applied to the city authorities for permission to repair the building, but was refused permission, because it was within the fire limits of the city, and the building was ordered to be taken down. Judgment for plaintiff. Defendant appeals. Affirmed.

Crawford & Crawford, for appellant. Leake & Henry, for appellee.

STAYTON, J.

The rights of the parties must depend on the character of the loss sustained while the policy issued on January 23d was in force. The thing insured was a two-story frame "building" on Main street, in the city of Dallas. By the term "building," used in the finding of facts, we understand to be meant a "house," which it is shown had been used as an "hotel." It was destroyed by fire; and if the loss was total, by reason of the fact that the building insured was thus so destroyed, — that it ceased to be, within the meaning of the law, a building, — then, under the laws of this state, the policy evidences a liquidated demand against the appellant for the full sum for which the policy was issued. Rev. St. art. 2971; Queen Ins. Co. v. Jefferson Ice Co., 64 Tex. 578. The court below found that the effect of the fire which occurred the day after the policy was issued, was to reduce the building to a condition as follows: "The east wall of it was entirely destroyed. The roof was destroyed. Almost one-half of the interior of it (extending from the foot of the east wall to the top of the west wall) was destroyed. The front of it was partly lying on the street, and partly hanging, liable to fall at any time. Thus it had lost its specific character as a building, and was unfit for use as an hotel or for other purposes, and was a total loss; this loss being the combined result of the two fires." It is unimportant to what extent the building may have been injured by the former fire, which occurred on January 4, 1884, while the property was covered by other policies; for settlement had been made in reference thereto, and those policies canceled, and such injury can have no bearing on the question of liability under policies subsequently issued. When the policy sued upon was issued, the property may have been seriously injured by the fire which occurred before that time; but such was the condition of the property when the policy sued upon issued that the appellant insured it as a building, and such, in the absence of averment and proof of fraud in procuring the policy, it must be held to have been at the time the policy issued. The question, then, is, did fire so change the character of the thing insured, after the policy sued upon was issued, as to make a total loss of the building, within the meaning of the contract of the parties? The court below found that the building was a total loss, and we are of the opinion that the facts stated in the finding justified that conclusion. It was the building that was insured, — a specific thing, and not merely the material of which it was constructed. In the case of Williams v. Insurance Co., 54 Cal. 450, the following charge was affirmed: "A total loss does not mean an absolute extinction. The question is not whether all the parts and materials composing the building are absolutely or physically destroyed, but whether, after the fire, the thing insured still...