Lyles v. National Liberty Ins. Co.

• Decision Date: 14 June 1938
• Docket Number: 1861
• Citation: 182 So. 181
• Parties: LYLES v. NATIONAL LIBERTY INS. CO. SAME v. SPRINGFIELD FIRE & MARINE INS. CO
• Court: Court of Appeal of Louisiana — District of US

182 So. 181

LYLES v. NATIONAL LIBERTY INS. CO.

SAME v. SPRINGFIELD FIRE & MARINE INS. CO

No. 1861

Court of Appeal of Louisiana, First Circuit.

June 14, 1938

Hawthorn, Stafford & Pitts, of Alexandria, for appellants.

A. R Lecompte, of DeRidder, for appellee.

OPINION

DORE Judge.

The above two suits were consolidated for the purpose of trial as the issues and facts in both cases are the same. Separate judgments were entered and separate appeals taken in each case. Both suits arise out of fire insurance policies, one for the sum of $ 800 with the first named defendant and the other for the sum of $ 1,000 with the second named defendant on two separate houses destroyed by fire at the same time on April 15, 1937. Plaintiff asked for the statutory penalty of 12% against each company, and for attorney's fees. The trial court rendered separate judgments against each company for the amount of the policies with interest, but disallowed the claim for penalties and attorney's fees. Defendants appealed and plaintiff has answered the appeal, asking for an amendment of the judgments so as to allow the penalties and attorney's fees.

While separate records are made up in each case, yet, as the law and the facts are identical in each case, the two cases have been argued, briefed and submitted in this court together. The following reasons for judgment will apply in each case to conform to the original proceedings and the judgments rendered therein:

The issuance of the policies and the total destruction of the property by fire are admitted. Liability is denied on the ground that plaintiff was not the sole and unconditional owner of the property, and that the buildings destroyed were not on ground owned by plaintiff, the insured, in fee simple, as required by the policies; that on November 16, 1935, plaintiff, for a consideration of $ 750, sold the insured property to Doyle Brown, and Brown went into possession of same and said property was assessed to Brown as owner.

The record shows that plaintiff, on November 16, 1935, executed a warranty deed to Doyle Brown covering the lots on which the two houses were located, and on the same day and at the same time the parties entered into a collateral agreement as follows:

"The within agreement is entered into this 16 day of November A. D.1935, by and between Hiram Lyles and Doyle Brown, Witnesseth:

"Hiram Lyles this day having executed a cash warranty deed to and in favor of Doyle Brown covering Lots 5 and 6 Block P, High School Park Addition, and the said consideration being represented by 25 notes for $ 10.00 each and 20 notes for $ 20.00 each, the first due December 15 1935 and monthly thereafter, and which deed and notes being deposited in the City Savings Bank & Trust Co., DeRidder, for collection. It is agreed and understood that upon the failure of the said Doyle Brown to pay 2 notes after their maturity it shall be optional with the said Hiram Lyles to declare the deed and notes null and void and is authorized to retain all amounts paid by the said Doyle Brown as rent.

"The parties hereto authorize the said City Savings Bank & Trust Company, DeRidder, upon the default as above stated to deliver said deed and notes to the said Hiram Lyles, and they to be held blameless in all matters."

At the time of the execution of the deed and agreement, the houses were insured and after executing the deed and agreement, plaintiff and Brown went to the local agent of the two defendant insurance companies and explained their transaction and presented the documents to the agent and requested the proper endorsement on the policies to meet the situation. The agent then informed the parties that plaintiff was still the record owner of the properties and that the insurance should be continued in plaintiff's name and placed an endorsement on each policy as follows: "Notice is accepted, without prejudice to this insurance, that the within described property is being sold under contract to Doyle Brown". Thereafter, the insurance continued to be written in the same form.

The papers were put in the designated bank and Brown paid several notes thereon and occupied one of the houses himself and...