McPherson v. Camden Fire Ins. Co

• Decision Date: 19 May 1920
• Docket Number: (No. 118-2983.)
• Citation: McPherson v. Camden Fire Ins. Co, 222 S.W. 211 (Tex. 1920)
• Parties: McPHERSON v. CAMDEN FIRE INS. CO.
• Court: Texas Supreme Court

222 S.W. 211

McPHERSON v. CAMDEN FIRE INS. CO.

(No. 118-2983.)

Commission of Appeals of Texas, Section A.

May 19, 1920.

Error to Court of Civil Appeals of Seventh Supreme Judicial District.

Suit by Electra McPherson against the Camden Fire Insurance Company. Judgment for defendant was affirmed by the Court of Civil Appeals (185 S. W. 1055), and plaintiff brings error. Affirmed.

Seay & Seay, of Dallas, for plaintiff in error.

Thompson, Knight, Baker & Harris, and Will C. Thompson, all of Dallas, for defendant in error.

TAYLOR, J.

Electra McPherson sued the Camden Fire Insurance Company on its policy of insurance covering her stock of millinery at Jacksonville, Tex. By agreement the case was withdrawn from the jury and submitted to the court. The court found that the company on March 20, 1914, delivered to plaintiff its policy for $3,000, and that the first annual premium, in the sum of $76.50, was paid; that on the night of the 17th of April following, plaintiff's entire stock of millinery, valued at $1,563.40, was destroyed by fire. The record warranty clause of the policy, sometimes called the "iron safe clause," the breach of which was interposed by the company as a defense, is set out in full in the court's findings. By its terms, plaintiff agreed to take a complete inventory of the stock, keep a set of books showing clearly all purchases, sales, and shipments, keep and preserve the books and inventories, and at night, and at all other times when the store was not open for business, keep them locked in a fireproof safe, or in some secure place; and in the event of loss or damage insured against, to deliver both the inventories and books to the company for examination. The clause stipulated, among other things, that its requirements were an inducing cause to the acceptance of the risk.

The court found that the clause was a reasonable and material provision of the policy, and stated as a conclusion of law that it was not an immaterial and technical provision; that plaintiff, having failed to comply with its terms, was not entitled to recover against the defendant in any amount, except the sum of $76.50, tendered into court by the company as the premium paid. Judgment was rendered in favor of the company, in keeping with the court's findings and conclusion, and on appeal was affirmed. (Civ. App.) 185 S. W. 1055. The writ was granted upon application referred to the Committee of Judges.

The case turns upon the construction of an act of the Thirty-Third Legislature (Gen. Laws 1913, p. 194), section 1 of which has been brought forward in Vernon's Sayles' Civil Statutes as article 4874a. The act, including the title and emergency clause, and omitting section 2 of the enacting clause, is as follows:

"An act to prevent fire insurance companies from avoiding liability for loss and damage to personal property under technical and immaterial provisions of the policy or contract of insurance where the act breaching such provision has not contributed to bring about the loss, and declaring an emergency.

"Section 1. That no breach or violation by the insured of any of the warranties, conditions or provisions of any fire insurance policy, contract of insurance, or application therefor, upon personal property, shall render void the policy or contract, or constitute a defense to a suit for loss thereon, unless such breach or violation contributed to bring about the destruction of the property. * * *

"Sec. 3. Whereas, under the existing laws, insurance policies and contracts may be defeated upon purely technical provisions and defenses that in no way affect the merits of the claim against the insurance company, and such defenses have been upheld to the extent of making it almost impossible for an insurance policy upon personal property to be collected by suit, creates an emergency and imperative public necessity that the constitutional rule requiring bills to be read on three several days in each house be suspended, and that this act take effect and be in force from and after its passage, and it is so enacted."

If the act is not in contravention of the Constitution of the state, and embraces within its provisions the record warranty clause of the policy sued upon, plaintiff is entitled to recover; otherwise the judgments of the trial court and Court of Civil Appeals should be affirmed.

It is urged that the act is violative of section 35, article 3, of the Constitution, providing that no bill shall contain more than one subject, which shall be expressed in its title.

This position, in the view we take of the purpose and scope of the act, is not tenable. It is incumbent upon the court to ascertain the intention of the Legislature, and, if possible by fair construction, uphold it. The constitutional provision referred to should be construed liberally, rather than embarrass legislation by a construction the strictness of which is unnecessary to the accomplishment of the beneficial ends for which it was adopted. Morris v. Gussett, 62 Tex. 741; City of Austin v. McCall, 95 Tex. 575, 68 S. W. 791.

The subject as expressed in the title, without relation to the purpose of the act, is the technical and immaterial provisions of fire insurance policies or contracts, or, more briefly expressed, without material change of meaning, the immaterial provisions of fire insurance policies. The end to be reached through the subject, or the subject stated in relation to the purpose of the act, is to prevent fire insurance companies from avoiding liability under such provisions. The purpose expressed in the title, and no other, in our opinion, is effectuated by the provisions of the act.

Viewing the title as a part of the law (M., K. & T. Ry. Co. v. Mahaffey, 105 Tex. 394, 150 S. W. 881), and referring to the body of the act in construing the title, which is permissible (Austin v. McCall, supra), we have concluded that they are not necessarily in conflict, and that neither is broader than the other. So viewed, the act is not subject to the constitutional objection urged.

Several of the Courts of Civil Appeals have applied the act in cases in which its constitutionality was questioned, usually upon the ground stated above. While holding different views as to the proper interpretation of the act, none have expressed any doubt as to its constitutionality. Commonwealth Insurance Co. v. Finegold (Civ. App.) 183 S. W. 833; Camden Fire Insurance Co. v. McPherson (Civ. App.) 185 S. W. 1055; Westchester Fire Insurance Co. v. McMinn (Civ. App.) 188 S. W. 25; M. & M. Ins. Exchange v. So. Trading Co. (Civ. App.) 205 S. W. 352; Allemania Fire Insurance Co. v. Angier (Civ. App.) 214 S. W. 450; Ætna Insurance Co. v. Lewis (Civ. App.) 204 S. W. 1170; Ætna Ins. Co. v. Waco Co. (Civ. App.) 189 S. W. 315; Westchester Fire Insurance Co. v. Roan (Civ. App.) 215 S. W. 985.

The purpose of the act is not to prevent fire insurance companies from incorporating in their policy contracts provisions of any character or class, but to prevent such companies from avoiding liability under immaterial provisions. Only such provisions, it is clear from the language of the title, are embraced within its terms. It is thus apparent that the scope of the act is not unrestricted, and that not all policy provisions are intended to be brought within its purview. It is apparent also from section 3, containing the emergency clause, that the Legislature intended to bring within the terms of the act only that class of fire policy provisions the breach of which could in no way affect the merits of claims for losses under them. It should not be assumed, we think, in view of the limitation of the scope of the act expressed in the title, and the implication of its restricted application as pointed out in section 3, that the Legislature intended the act to embrace all stipulations of the policy, or that it intended that a test, in no way related to the legitimate purposes of a limited class of stipulations, should be applied after the fire, as a measure of the materiality of all the stipulations. To so construe the act is to have it say in effect that no breach of a stipulation of a certain class shall render the policy void, unless such breach contributed to do that which it could not do.

The difficulty in construing the statute invoked in this case, in view of the limitations pointed out, is in determining what provisions of fire policies are within its terms. The class to which it is applicable is not defined except upon the basis of materiality, which is to be determined in each individual case after the loss has occurred, by the test of whether the breach of the provision interposed as a defense contributed to bring about the destruction of the insured property. The logical inquiry is therefore whether there is a class of provisions to which the test referred to is peculiarly applicable in determining their materiality, and whether there is a class to which such a test is wholly inapplicable.

The policy sued on contains a clause which is termed a "gunpowder and kerosene permit." Under its terms, the amount of powder or kerosene allowed to be kept on the premises is limited, and the number of feet from an artificial light at which it is permitted to be handled is specified. The permit provides that failure to comply with its conditions shall render the policy void. The limitations were inserted to decrease the likelihood of fire, and failure to observe them would have increased the probability of its occurrence, and might have contributed directly to bring it about.

In the Finegold Case, supra, the court found as a fact that the keeping of gasoline on the insured premises was a breach of the insurance contract by the insured, but further found that such breach did not contribute to bring about the destruction of the property insured. The Court of Civil Appeals applied the act under consideration, being of the view that the stipulation as to keeping gasoline was...