Hanover Fire Ins. Co. v. Shrader

• Decision Date: 29 May 1895
• Parties: HANOVER FIRE INS. CO. v. SHRADER et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

31 S.W. 1100

HANOVER FIRE INS. CO. v. SHRADER et al.¹

Court of Civil Appeals of Texas.

May 29, 1895.

Appeal from district court, Hardeman county; G. A. Brown, Judge.

Action by G. W. Shrader and another against the Hanover Fire Insurance Company on a policy of fire insurance. From a judgment for plaintiffs, defendant appeals. Affirmed.

A. G. Walker and D. E. Decker, for appellant. Burton P. Eubank, for appellees.

Statement of the Case.

TARLTON, C. J.

On April 26, 1893, M. E. Shrader, joined by her husband, G. W. Shrader, and W. J. Rogers, brought this suit against the appellant, Hanover Fire Insurance Company. They alleged that on December 7, 1892, the plaintiff M. E. Shrader and W. J. Rogers composed the firm of Shrader & Rogers; that they were the owners of a certain stock of drugs, medicines, etc., in the town of Quanah; that on the date named the appellant and the Citizen's Fire Insurance Company of New York, by insurance policy No. 300,012, each company contracting for itself, insured the property as that of Shrader & Rogers against loss by fire, in the sum of $1,600, for the term of one year, the appellant, in case of loss, to pay two-thirds thereof, and the Citizen's Insurance Company to pay the remaining third; that while the policy was in force, on December 20, 1892, the property was wholly destroyed by fire. They alleged the giving of proper notice and proof of loss, as provided for in the policy. On May 19, 1893, an amended petition was filed, in which M. E. Shrader was omitted as a plaintiff, the names of the plaintiffs being given as G. W. Shrader and W. J. Rogers, composing the firm of Shrader & Rogers, to whom, as averred, the policy was issued. On November 13, 1893, G. W. Shrader and W. J. Rogers filed a second amended original petition, alleging the firm of Shrader & Rogers to be composed of G. W. Shrader and W. J. Rogers, and that the policy was thus issued to them; and further alleging that the property insured by appellant was purchased by appellee G. W. Shrader in the name of M. E. Shrader, his wife, on or about the 7th day of December, 1892, from W. S. Harris; that, although the transfer was made to M. E. Shrader, G. W. Shrader paid the consideration therefor; that on said date G. W. Shrader transferred, for a valuable consideration, a half interest to W. J. Rogers; that G. W. Shrader carried on his interest in the business, and did business in the name of M. E. Shrader, and that the firm name was Shrader & Rogers. The character of the remaining averments on the part of the appellees, as also of the appellant, will be sufficiently indicated in our remarks disposing of the assignments of error. A trial before the court resulted in a verdict for the plaintiffs in the principal sum of $1,069.47; hence this appeal.

We find the following conclusions of fact, mostly from those filed by the trial judge: (1) On December 7, 1892, G. W. Shrader purchased from W. S. Harris a stock of merchandise, drugs, and medicines, and other property such as was covered by the insurance policy herein sued on. The property comprised the stock and fixtures in what was known as the "Palace Drug Store," in Quanah, Tex. It was paid for by G. W. Shrader, the property being of the cash value of $2,700; Shrader at the same time assuming and paying $200 indebtedness of Harris on the property. (2) Shrader took from Harris a bill of sale to the property. This instrument, dated December 7, 1892, is in the name of M. E. Shrader, who is the wife of G. W. Shrader. It was duly acknowledged and recorded on the same day. (3) Immediately after the purchase, G. W. Shrader sold to W. J. Rogers one-half interest in the property, and thereupon the two formed the partnership of Shrader & Rogers. Each put into the firm business his one-half interest in the property, and proceeded to engage in a regular drug business, in the same house as that previously occupied by W. S. Harris. (4) On the same day — December 7, 1892—G. W. Shrader, for the firm of Shrader & Rogers, applied for and received the policy of insurance herein sued on. This was issued by the firm of Elbert & Shrader, local agents for the appellant company, a corporation organized under the laws of New York, and for the Citizen's Insurance Company. G. W. Shrader, the insured, was a member of the firm of Elbert & Shrader, local agents. The insurance policy was No. 300,012. In it each of the companies contracted for itself, and not one for the other, in consideration of the sum of $32, two-thirds of which amount was paid by the firm of Shrader & Rogers to the appellant and one-third to the Citizen's Insurance Company. The amount of the insurance was $1,600, $400 of which was on the fixtures and $1,200 on the stock of drugs. Two-thirds of this sum was insured by the appellant and one-third by the Citizen's Insurance Company, for the term of one year. (5) The policy binds the appellant to pay to Shrader & Rogers all losses not exceeding two-thirds of the amount insured. (6) During the month of December, 1892, after the issuance of the policy and prior to December 20, 1892, Shrader & Rogers placed in the stock of drugs $117.19 worth of goods, selling during that time merchandise of the value of $72.50. December 20, 1892, the property insured was wholly destroyed by fire. At that time the fixtures were of the cash value of $700, and the drugs, medicines, etc., of $2,200. J. L. Elbert, of the firm of Elbert & Shrader, local agents at Quanah (composed as already stated of J. L. Elbert and G. W. Shrader), drew up the policy, and signed thereto the firm name of Elbert & Shrader. In applying for the policy, G. W. Shrader informed his copartner, J. L. Elbert, that the bill of sale from Harris to the property was made to M. E. Shrader, wife of G. W. Shrader, but that the property belonged to the partnership of Shrader & Rogers, composed of G. W. Shrader and W. J. Rogers. The firm of Shrader & Rogers, at the time of the fire, had in their store a good, iron safe, in which they kept their books, invoices, inventories, accounts, and papers pertaining to their business; and on the evening before the fire, about 9 o'clock p. m., December 19, 1892, the firm closed and locked the safe, with the books, papers, invoices, etc. (7) On December 20, 1892, between 12 and 2 o'clock, the property was destroyed by fire. Perforce of the finding below, not here complained of, we are constrained to conclude that this fire was in no sense due to the fault or to the negligence of G. W. Shrader or of W. J. Rogers. The fire also consumed all the books and papers, invoices and inventories, of Shrader & Rogers, pertaining to the property and the business. (8) Prior to the fire, Shrader & Rogers kept a set of books in the manner and as required by the iron-safe clause attached to the policy. These were placed in the safe, and destroyed as stated. (9) Immediately after the loss, Shrader & Rogers notified the companies thereof. They also then forwarded a proof of loss. This proof was made out in the name of M. E. Shrader and W. J. Rogers, composing the firm of Shrader & Rogers. It was sworn to by them, and contains, among other matters, the statement that M. E. Shrader and W. J. Rogers are the members, and only members, composing the firm of Shrader & Rogers, and that they were the sole...