Kelley-Goodfellow Shoe Co. v. Liberty Ins. Co.

• Decision Date: 26 September 1894
• Parties: KELLEY-GOODFELLOW SHOE CO. et al. v. LIBERTY INS. CO. (WORTHAM, Intervener).
• Court: Texas Court of Appeals

28 S.W. 1027

KELLEY-GOODFELLOW SHOE CO. et al. v. LIBERTY INS. CO. (WORTHAM, Intervener).

Court of Civil Appeals of Texas.

September 26, 1894.

Appeal from district court, Lamar county; E. D. McClellan, Judge.

Suit by Kelley-Goodfellow Shoe Company against J. N. McBath, wherein a writ of garnishment was sued out against the Liberty Insurance Company. J. G. Wortham, trustee, intervened. There was a judgment for garnishee, and the others appeal. Affirmed.

The following from appellants' brief is a substantially correct statement of the case: "This suit originated in a garnishment proceeding, as follows: Kelley-Goodfellow Shoe Company sued J. N. McBath in the district court of Lamar county, and sued out a writ of garnishment against the Liberty Insurance Company, which was duly served, and on February 27, 1892, the garnishee answered under oath denying indebtedness to J. N. McBath, on the alleged grounds that no proofs of loss had been furnished in accordance with the policy. April 2, 1892, the answer was duly contested by the plaintiffs, setting up the policy, loss, and proofs of loss. April 25, 1892, the debtor, J. N. McBath, joined by J. G. Wortham, trustee, who intervened, filed their contest and plea of intervention, under oath, contesting the answer of the garnishee, the Liberty Insurance Company; and setting up that about April 30, 1891, the said insurance company issued to said J. N. McBath its policy of insurance against fire, for $2,500, on his stock of goods in Paris, Tex., on which the premium was duly paid; that about January 13, 1892, the property was damaged and destroyed by fire; that notice of the loss was duly given, in accordance with the policy; that after the loss J. N. McBath, being indebted to various parties, pledged, transferred, assigned, and delivered the policy to J. G. Wortham, trustee, February 3, 1892, to collect, and pay the proceeds on such debts, and that such trustee and the assured had in all things complied with the terms of the policy; and on February 6, 1892, had made full proofs of loss in accordance therewith, alleging the refusal of the insurance company to pay, and asking for judgment. These allegations were formally tendered as issues. Tenders of issues were made both by the plaintiffs and defendant, and in an amended pleading filed October 3, 1892, the garnishee presented the following issues, after a general denial: (2) That the assured failed to keep a set of books showing a complete record of his business, in accordance with the `iron-safe clause' of the policy, which was a warranty; and (3) that he failed to exhibit the books so kept after the fire, so as to enable them to ascertain the exact loss; (4) that the loss was not total, and that there was other insurance, amounting in all to $25,950, and that the garnishee's part would not amount to over one-half the amount claimed; (5) that there was $500 over insurance without the consent of the insurer, contrary to the terms of the policy; (6) that the assured was not the sole and unconditional owner of the property insured; (7) that the assured made misrepresentations in his proofs of loss; (8) that the property was destroyed by the procurement and consent of the assured; (9) that the assured made false representations at the time of procuring the policy as to the value of the stock. For reply thereto the interveners deny all the allegations of the defendants, and deny that the assured in any manner violated any of the conditions of the policy, but allege full compliance with its terms. (2) They deny that the pretended `iron-safe clause' was a condition of the policy or a warranty, but aver that the same is a separate piece of paper, pasted onto the face of the policy, and wholly disconnected, and among the stipulations made by the company, and not among those of the assured, and printed in small type, so as to escape notice; and the existence of the same escaped the notice of the assured, and was never called to his attention until after the fire. They deny that it was or is material; but they aver that, in any event, no injury has occurred by reason thereof, because the assured did keep a set of books in an iron safe, as provided therein, and that he kept a complete record of his business as therein provided, and that after the fire he tendered said books to defendant for examination, and still offers them; that said loss was and is fully shown from said books and inventory and the proof of loss. (3) They deny that the loss was only partial, but set out all the insurance and names of companies, and show a total loss. (4) They deny any condition of warranty in the policy that no additional insurance should be taken, but set out full consent of the defendant to all the insurance taken, and aver the consent of defendant's agent thereto, and his agreement to indorse the same on the policy, and that the policy had been taken by him for that purpose; and he told the assured it was made, and if he failed to make the proper indorsements it was an oversight and mistake on his part. (5) They deny any false statements, whether as to the value of the stock, or that the same was overvalued, but allege that the agent of the defendant examined the invoice and the goods before the issuance of the policy. (6) They allege the unconditional ownership of the goods in the assured. (7) They deny that the assured ever in any manner procured the property to be burned, but declare that the fire occurred during the absence of the assured, and without any fault on his part. The plaintiff adopted the allegations of interveners' first supplemental petition, October 3, 1892. The case was tried October 8, 1892, and judgment rendered on the verdict of a jury in favor of defendant," — from which this appeal was taken.

Lightfoot, Denton & Long, for appellants McBath and Wortham. Dudley & Moore, for appellant Kelley-Goodfellow Shoe Company. Allen & Allen and Leake, Shepard & Miller, for appellee.

FINLEY, J. (after stating the facts).

The defendant's witness, Duke Cummins, testified that a week or ten days before the fire the assured, J. N. McBath, attempted to hire him to burn the building in which the insured goods were situated. He testified that when the assured first approached him on the subject he told him that the building he wanted him to burn was the Bywaters building, on South Main street; that afterwards he explained to him that it was not that building, but the one occupied by himself, which he desired to be burned. The assured had no interest whatever in the Bywaters building; it was occupied by a friend of the assured. The truth of the testimony of Cummins was denied by McBath, the assured; and the witness Williams testified that Cummins had a conversation with him after the fire, in which he stated that detectives had been trying to get him to swear to such statements, but he (Cummins) had refused to do so, because it was a lie. To support the testimony of Cummins, the insurance company introduced George Henley, who testified that before the fire occurred he had a conversation with Cummins, in which Cummins detailed to him the facts sworn to by Cummins, as above related. The testimony of Henley was objected to as irrelevant, hearsay, and self-serving declarations. The admission of this testimony is the subject of the first assignment of error. The character of the witness was sought to be impeached by showing that he had made statements out of court which were contradictory of his testimony; and it was also sought to be shown that he was mad at the assured for not selling him a suit of clothes on credit. The material testimony of the witness being directly contradicted, and his character as witness attacked in the manner stated, the court did not err in admitting the evidence of witness Henley. Lewy v. Fischl, 65 Tex. 318; Greenl. Ev. § 469; Com. v. Wilson, 1 Gray, 340.

It is also contended that the court erred in permitting the witnesses Cummins and Handcock to testify that the assured endeavored to get them to burn a building in which he had no interest, — the Bywaters building. The witness Handcock testified to such a proposition having been made to him by the assured, and that he promptly rejected it. Cummins testified that he was approached in the same way, and, after he took the proposition under consideration, the assured explained to him that it was the building he was occupying that he desired to be burned. We think Cummins' testimony clearly admissible, and that, in the light of it, Handcock's was also admissible. The evidence of Cummins showed, if true, that McBath wanted the crime of arson committed for the purpose of getting insurance money, and that his manner of approaching a person to secure its commission was first to suggest the burning of a house in which he had no interest, and, if the proposition was entertained, then to give the information that it was his house which he wanted burned. In the proof of an issue of such a character as arson, involving, as it does, such moral turpitude and criminal intent, every circumstance tending to prove the guilty purpose is admissible in evidence. A circumstance which, standing alone, would not tend to prove the main fact in issue, would be admissible, if, in connection with other evidence, it tends to prove the issue. Such is the character of this evidence, and it was admissible.

The court, over objections, permitted witnesses to testify that the building and stock of goods presented the appearance of having been coal-oiled, and to finding coal oil and a coal-oil can in the building. It is urged that the only defense or reason set up by the garnishee in its sworn answer to the writ of garnishment why it should not be charged was that no proof of loss had been made, and it is insisted that the evidence should have been confined to that issue. The same character of objection was made to the admission of all evidence tending to prove the defenses set up in the...