Hartford Fire Ins. Co. v. Dorroh

• Decision Date: 15 December 1910
• Citation: 133 S.W. 465
• Parties: HARTFORD FIRE INS. CO. v. DORROH.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

133 S.W. 465

HARTFORD FIRE INS. CO. v. DORROH.^†

Court of Civil Appeals of Texas.

December 15, 1910.

On Rehearing, January 12, 1911.

Error from District Court, Upshur County; R. W. Simpson, Judge.

Action by J. M. Dorroh against the Hartford Fire Insurance Company. Judgment for plaintiff, and defendant brings error. Affirmed.

William Thompson, Geo. S. Wright, and I. D. Fowler, for plaintiff in error. J. P. Hart and Warren & Briggs, for defendant in error.

HODGES, J.

On January 8, 1909, a building belonging to defendant in error and occupied by the company of which he was a member as a general merchandise store was destroyed by fire. The property was at that time covered by a policy of insurance issued by the plaintiff in error for $3,500. Upon demand and refusal of payment this suit was instituted to recover the amount of the policy. Plaintiff in error denied liability upon the following grounds: (1) That the provisions of the policy forbidding the taking of other insurance without the consent of the company had been breached. (2) That, after the policy was issued, the hazard became increased by threatened danger by fire, and notice of this fact was brought home to the assured, who failed to notify the company and obtain its consent for the policy to remain in force as required by its terms. (3) That the assured was guilty of fraud in reference to the insurance, or the subject thereof, in that before the fire occurred he was advised and put upon notice of the contemplated fire, and that he failed to exercise ordinary care to prevent the fire, and concealed from plaintiff in error information in reference to the contemplated fire. A trial before a jury resulted in a verdict and judgment in favor of the defendant in error for the full amount sued for.

None of the assignments presented in the brief of the plaintiff in error raise any questions involving the defense embodied in the first subdivision above mentioned. Among the numerous clauses providing for its forfeiture under the conditions named in the policy was the following: "This entire policy shall be null and void if the hazard be increased by any means within the control or knowledge of the insured." The particular fact relied upon as constituting the increased hazard in the present case was the receipt by Dorroh a few days prior to the fire of the following anonymous letter: "T. J. and J. Some merchant below you all is moving goods at night. Now keep this a secret and look out. This is from a friend of yours. Jim and the old man." The plaintiff in error was not informed of the existence of this communication till after the fire. On both his direct and cross-examination, while on the witness stand, Dorroh was interrogated touching the receipt of this letter, and why he had failed to disclose that fact to the company, or its local agent. In giving his reasons he was permitted over objection of plaintiff in error to testify substantially as follows: "I have heard and known of other anonymous letters being received by people, which letters were of a threatening nature and received by people in Big Sandy. Dr. Gregory got one of these letters four or five years ago. I cannot recall the contents of the letter received by Dr. Gregory at this time. It was a letter threatening him about prohibition." And in answer to the question as to whether the threats were ever put into execution, he testified: "I do not know of any harm coming to them in this world, except that he and Campbell wore out a pistol of mine carrying it for some people. I do not know who they were. Mr. Campbell, who was an editor and justice of the peace of Big Sandy, also received an anonymous letter, and this letter had something in it about the enforcement of the law down there." The witness was further permitted to testify concerning a letter which he said he had received a year and a half before that time, warning him to leave town or "stop meddling about the whisky business," and to say that nothing ever came of that letter. This testimony was objected to on the ground that it was irrelevant, immaterial, incompetent, and hearsay, and based upon writings which were not before the court and for whose nonproduction no explanation had been given. The admission of this and similar testimony is complained of in several different assignments, all of which will be considered together.

There are two grounds upon which the materiality of this testimony may be challenged. One is, if the letter made known to Dorroh an increased hazard within the meaning of the policy providing for a forfeiture in such cases, any explanation which he might give after the loss for his failure to disclose his information to the company would not affect the legal consequences of the fact that the hazard had been increased, and that he knew it. The other is the letter shows upon its face that it does not relate to a hazard the increase of which "by any means within the control or knowledge of the insured" should by the terms of the policy cause a forfeiture. The paragraph containing this provision of the policy is as follows: "This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy; or if the subject of insurance be a manufacturing establishment, and it be operated in whole or in part at night later than 10 o'clock, or if it cease to be operated for more than ten consecutive days; or if the hazard be increased by any means within the control or knowledge of the insured [italics ours]; or if mechanics be employed in building, altering or repairing the within described premises for more than fifteen days at any one time." Then follow a number of other provisions, in which it is stipulated that there shall be a forfeiture of the policy if certain named conditions occur. If this anonymous communication, and its receipt by Dorroh, is to be regarded as materially affecting the continued validity of the policy of insurance, it must be because it conveyed to Dorroh information of preparations for incendiarism on other premises. The writer does not say specifically that some one was preparing, or intending, to set fire to this or another building, but uses language which might be construed as an intimation that he thought a burning was probable. The real hazard, if any, did not arise from the writing and receipt of the letter, but upon the independent existence of the conditions referred to—that some one was guilty of moving goods secretly at night with a view of subsequently burning the building being vacated. Unless this occurrence took place, there was no new menace to the property brought to the knowledge of the insured, and no grounds upon which to claim a forfeiture. It seems that no effort was made upon the trial in the court below to prove that any such state of facts as that stated in this communication had ever existed. The duty of making that proof rested upon the plaintiff in error. 19 Cyc. 936, 937, and cases cited. Certainly the mere writing and mailing of this anonymous communication will not be considered sufficient evidence. Until it is shown that a more hazardous situation had been created, it cannot be said that Dorroh had been informed of any, and there could be no cause for a forfeiture under that clause of the policy.

It is also apparent from the face of this letter that the probable incendiarism hinted at would likely originate on premises other than those covered by this policy. It has been held that the "increased hazard" provided against in policies of insurance refers to changes in conditions in or upon the insured premises, and not on those adjacent. State Ins. Co. v. Taylor, 14 Colo. 499, 24 Pac. 333, 20 Am. St. Rep. 281; Sun Ins. Co. v. T. F. & M. Works, 3 Willson Civ. Cas. Ct. App. § 320; 2 Cooley's Briefs on Ins. 1499 1500. In the case first above cited the court said: "It is provided in the policy that, if the hazard is increased without the consent of the company in writing, the policy shall be void. This should be construed as only applying to the insured premises, or to property under the control of the insured. There is nothing in the language used which would extend it to property not under his control, and the acts of others, and hold him responsible for the...