Keller v. Liverpool & L. & G. Ins. Co.

• Decision Date: 08 November 1901
• Citation: 65 S.W. 695
• Court: Texas Court of Appeals
• Parties: KELLER v. LIVERPOOL & L. & G. INS. CO.<SMALL><SUP>1</SUP></SMALL>

65 S.W. 695

KELLER v. LIVERPOOL & L. & G. INS. CO.¹

Court of Civil Appeals of Texas.

November 8, 1901.

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

Action by Theodore Keller against the Liverpool & London & Globe Insurance Company. From a judgment for defendant, plaintiff appeals. Affirmed.

E. P. Hamblen and W. P. & A. R. Hamblen, for appellant. Alexander & Thompson, for appellee.

PLEASANTS, J.

Appellant brought this suit upon a fire insurance policy for $5,000, issued by appellee, covering lumber stacked in the mill yard of W. E. Trotti at Mobile, Tyler county, Tex. The lumber was insured as the property of Trotti, but by the terms of the policy the loss, if any, was payable to appellant as his interest should appear. The petition alleges that the lumber was destroyed by fire on the 14th day of July, 1899, and that Trotti was indebted to appellant at the time of said loss in the sum of $5,000, and that said policy was taken out for appellant's benefit, and sets out facts sufficient to show the liability of appellee to appellant for the amount of said policy. It further alleges that the appellee had waived the "iron safe clause" contained in said policy, and that the "clear space clause" was attached to said policy either through the fraud or mistake of the agent of appellee; that, when the insurance was contracted for, the agent of the company examined and measured the clear space on the ground, and agreed to insure the lumber as it then stood, and fixed the charges accordingly, and that the premium had been paid, and the agent knew that there was not 200 feet of clear space; that the policy was mailed to W. E. Trotti by the insurance company, who, without reading the same, and without knowledge that the clear space clause had been attached to the policy, mailed the same to the plaintiff in this case; and that the plaintiff in this case, without reading said policy, put the same away in his safe; and that neither Trotti nor appellant had knowledge that said clause was attached to said policy until after the fire, which occurred July 14, 1899. The defendant, by appropriate pleading, fully raised the issue that the "clear space clause" was a warranty, which had not been complied with, and therefore the policy was forfeited; and the further answer that the books, inventory, etc., had not been kept as required by the terms of said policy, and that such provisions in the policy were warranties, and therefore the policy of insurance was forfeited; and tendered back into court to plaintiff the premium paid for such insurance. Upon the trial of the case, the jury, under peremptory instructions by the court, returned a verdict for the appellee, and judgment was rendered in accordance with said verdict that appellant take nothing by his suit.

Upon the issue discussed in this opinion the following is a sufficient statement of the facts disclosed by the record: The policy sued on was issued on the 5th day of June, 1899, and contained the following clause: "200-Foot Clear Space Clause. Warranted by the assured that a continuous clear space of 200 feet shall hereafter be maintained between the property hereby insured and any woodworking or manufacturing establishment or dry kiln, and that said space shall not be used for the handling or piling of lumber thereon for temporary purposes, tramways upon which lumber is not piled alone excepted. And this shall not be construed to prohibit the loading or unloading within or transportation of timber and its products across such clear space. It being specially understood that any violation of this warranty shall render this policy null and void." On the 14th day of July, 1899, the lumber covered by the policy was entirely destroyed by fire. At the time of the fire the space between the stacks of lumber in the yard and the planer, which was a woodworking establishment, was 128 feet, and no greater space than this had been maintained at any time subsequent to the issuance of the policy. Some time in March, 1899, appellee's agent, W. H. Crouch, who resides at Nacogdoches, Tex., about 60 miles from Mobile, where the lumber yard was located, received a letter from W. E. Trotti asking for insurance upon lumber stacked in his yard. In accordance with the request contained in this letter, said agent issued three policies of insurance covering said lumber, one of said policies being for $5,000 in the Liverpool &...