Home Ins. Co. of N.Y. v. Enloe

• Citation: 287 S.W.2d 235
• Decision Date: 23 January 1956
• Docket Number: No. 6567,6567
• Parties: The HOME INSURANCE COMPANY OF NEW YORK, Appellant, v. B. M. ENLOE d/b/a DeLuxe Dry Cleaners, Appellee.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 235

287 S.W.2d 235

The HOME INSURANCE COMPANY OF NEW YORK, Appellant, v. B. M. ENLOE d/b/a DeLuxe Dry Cleaners, Appellee.

No. 6567.

Court of Civil Appeals of Texas, Amarillo.

Jan. 23, 1956.

Rehearing Denied Feb. 20, 1956.

William A. Rembert, Jr., Dallas, and J. B. Maguire, Jr., Pampa, for appellant.

Aaron Sturgeon and J. E. Thompson, Pampa, for appellee.

NORTHCUTT, Justice.

This action was brought by appellee to recover upon an insurance policy issued by appellant. The appellee first alleged the appellant was liable to appellee under Policy No. FC-405612, the same being a basic policy with Furrier's Customers' Custody Rider attached thereto for loss and damages to clothing, garments and furs kept by appellee for storage. Appellee alleged he did not have the policy but that it was in possession of appellant and gave appellant notice to produce the policy or that appellee would offer secondary evidence to prove the contents of said original policy, amendments and riders thereto. The appellant tendered Policy No. FC-405612 to the appellee but the appellee contended that that was not the policy in issue and, after considerable wrangling and attempts to show the contents of the policy relied upon by appellee, Policy No. FC-405614 was introduced as being the policy relied upon by appellee as covering his damages.

It is the contention of appellee that, in September 13, 1953, he had garments, furs and clothing of his customers in storage in a building located at 123 East Kingsmill Street, Pampa, Texas and that said building at such location together with the contents and the garments, furs and clothing belonging to appellee's customers which were stored in such building were totally destroyed and that such loss and damage were a risk covered by said policy. It was the contention of appellant that it was only liable for the loss of goods stored at 115 South Ballard Street, Pampa, Texas and goods in transit and denied any liability as to the articles stored at 123 East Kingsmill Street where the property was stored when it was destroyed by fire.

The case was submitted to a jury upon seven special issues. In reply to these issues, the jury found that the loss sustained by appellee was covered by the policy in question; that the policy was not issued by reason of a mutual mistake; that appellee offered to furnish to appellant a detailed proof of loss; that appellant denied liability under the policy within 90 days from the date of the fire; that appellee represented to appellant the aggregate amount of outstanding receipts monthly as required under the policy; that appellee sustained loss by reason of fire occurring on September 13, 1953, at 123 East Kingsmill Street, Pampa, Texas and that said damages amounted to $3,034.90. The court overruled appellant's motion for an instructed verdict and also its motion for judgment non obstante veredicto and granted judgment upon the verdict of the jury. Appellant presented its motion for new trial but the same was overruled by the court and appellant perfected this appeal.

Appellant presents its appeal upon six assignments of error but we are of the opinion that there is one point to be betermined in this case that will dispose of all the issues herein. It is the contention of appellee that he is entitled to recover $3,000 under the policy, as set out in appellee's Exhibit Four, where the $3,000 figure shows to be opposite the words 'Any other premises'. It is undisputed that appellant had been insuring the appellee for several years. The appellant, on January 23, 1949, issued a policy to appellee covering 315 West Kingsmill Street, Pampa, Texas, which included $3,000 covering 'Limit of liability while in transit.' Appellant issued its Policy No. FC-404859 in favor of appellee effective at noon, May 28, 1952, designating 315 West Kingsmill Street as appellee's place of business covered. This Policy No. FC-404859 was cancelled April 21, 1953 and effective as of that same date, April 21, 1953, is Policy No. FC-405614 covering appellee's place of business at 115 South Ballard Street, Pampa, Texas, being the same policy sued upon herein. It will be noticed that each of appellee's proposals for Furriers' Customers' policy, in each of the policies issues, places the request for the $3,000 coverage shown opposite 'while in transit.' By appellee's proposal for Furriers' Customers' Policy No. FC-405614, it follows that appellee does not want coverage for goods stored at any other location than 115 South Ballard Street but only wants the $3,000 coverage 'while in transit,' but now seeks to recover the $3,000 because the policy shows the $3,000 to be partially opposite 'Any other premises.'

So that it was be better understood as to the contentions made by each of the parties, we will copy that portion of the policy designating 'Limits of Liability' as to location which is as follows:

"Limits of Liability

* * * * * * * * * * *

(a) Locations used for storage of customers' property and limits of liability

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