Home Mut. Ins. Co. v. Tomkies

• Decision Date: 13 November 1902
• Citation: Home Mut. Ins. Co. v. Tomkies, 71 S.W. 812 (Tex. App. 1902)
• Parties: HOME MUT. INS. CO. v. TOMKIES et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

71 S.W. 812

HOME MUT. INS. CO. v.TOMKIES et al.^*

Court of Civil Appeals of Texas.

November 13, 1902.

Appeal from district court, Harris county; Wm. H. Wilson, Judge.

Action by Tomkies & Co. against the Home Mutual Insurance Company.Judgment for plaintiffs, and defendant appeals.Reversed.

Alexander & Thompson, for appellant.L. B. Moody, for appellees.

GARRETT, C. J.

This suit was brought by the appellees, Tomkies & Co., against the Home Mutual Insurance Company, the appellant, to recover upon a policy of insurance for the sum of $3,000, and interest thereon, issued June 27, 1900, for the period of one year.The property insured was the "machinery, shafting, gearing, tools, belting, implements, extra parts of machinery, mill supplies, elevators and millwright work, contained in the three and one story frame composition roof building, and one story brick composition roof boiler house adjoining, including bin, cupola, and all plumbing therein, situated on block 22, Houston, Texas."It was destroyed by fire on September 27, 1900, together with the building which contained it.The building had been damaged by the storm of September 8, 1900.In defense against the recovery, the appellant pleaded (1) that after the policy was issued, and before the fire, a change occurred in the interest and in the title of the assured in the property described in the policy, contrary to its terms, in a contracted sale to T. H. Thompson and B. F. Bonner et al.; (2) that a part of the building fell as the result of a cyclone, and not as the result of a fire, which made the policy void.There was a trial by jury, which resulted in a verdict and judgment in favor of the plaintiffs for the amount sued for.

The policy provided: "(1) This entire policy shall be void if the interest of the assured in the property be not truly stated herein.This entire policy, unless otherwise provided by agreement indorsed hereon or added hereon, shall be void if the interest of the assured be other than sole and unconditional ownership, or if any change, other than by the death of the assured, take place in the interest, title, or possession of the subject of insurance, * * * whether by legal process or judgment, or voluntary act of the insured, or otherwise.(2) If the building, or any part thereof, fall, except as the result of fire, all insurance by this policy on such building or its contents shall immediately cease."

In August, 1900, Tomkies & Co. made a written contract with T. H. Thompson and B. F. Bonner, as promoters of a prospective company, to be incorporated to sell the company the entire property described in the policy of insurance for a consideration of $8,500, to be paid, and the further consideration that L. L. Tomkies, one of the plaintiffs, was to be employed by the new company as head miller at $125 a month.The contract was signed by L. L. Tomkies & Co., and by T. H. Thompson as president and B. F. Bonner as secretary of the prospective company.This corporation was afterwards, on August 25, 1900, created as T. H. Thompson Seed & Rice Milling Company.It repudiated the contract entered into by Thompson and Bonner with Tomkies & Co.The main building was two stories high, 50 feet square, with a cupola 12×16 feet in the center, on the south side, 10 feet high.The only machinery in the cupola was the cleaner, which was operated by belting from the lower floor.The power plant was one story, 30×50 feet, adjoining the main building on the west.Prior to the storm the building was intact, good as new, and worth $5,000.The storm blew off the entire cupola, except a few of the uprights.The plate of the east wall of the building was broken in the center, and the wall was crushed and leaned in about three feet at the top.No part of it fell.The southeast corner of the roof had been ripped up.Some of it fell, leaning down in.Others blew off onto the ground.The power house was not injured, except that the smokestack fell, and probably broke something about the roof.The total of damage to the building by the storm was $200.A contractor had undertaken to restore it for that amount.

The contract for the sale of the property described in the policy of insurance was an executory contract to convey in the future.No consideration was paid, and there was no change in the possession or the right to the possession of the property.Such a contract does not constitute a change in the interest or title of the insured property, within the meaning of the stipulation in the policy by which it...