Northwestern Nat. Ins. Co. v. Woodward

• Decision Date: 23 March 1898
• Citation: 45 S.W. 185
• Parties: NORTHWESTERN NAT. INS. CO. v. WOODWARD et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

45 S.W. 185

NORTHWESTERN NAT. INS. CO. v. WOODWARD et al.¹

Court of Civil Appeals of Texas.

March 23, 1898.

Appeal from district court, Ellis county; A. L. Love, Special Judge.

Action by J. S. Woodward and another against the Northwestern National Insurance Company. Judgment for plaintiffs. Defendant appeals. Affirmed.

Oeland & Brown, for appellant. Groce & Skinner, for appellees.

On Motion for Rehearing.

NEILL, J.

We have concluded to grant the motion in this case, and set aside our judgment reversing the judgment of the court below, and affirm said judgment. We will therefore withdraw our original opinion, and write another, stating the conclusions of law and fact upon which we base our action.

This suit was brought by J. S. Woodward and J. H. Hull, trustees of the Milford Christian Church of Milford, Ellis county, Tex., against the Northwestern National Insurance Company, of Milwaukee, Wis., upon a policy of insurance, issued by said company, indemnifying said Woodward and Hull, as trustees of said church, against immediate loss or damage that might occur by tornadoes, cyclones, or windstorms to a certain one-story frame building known as "No. 103," corner Main and Water streets, in the town of Milford, Tex., to recover $1,500 damages alleged to have been done to said building by a cyclone or windstorm occurring on the 30th of April, 1896. The insurance company interposed a general demurrer to plaintiff's petition, pleaded a general denial, and pleaded specially that the policy sued on contained a clause that it should be optional with the company to repair, rebuild, or replace the property damaged with other property of like kind or quality, within a reasonable time after the damage to the property insured, after giving notice of its intention to do so, and that defendant elected to rebuild and repair said property damaged, and gave notice of its intention to do so within a reasonable time after the damage occurred, and sent its agent and employé on the ground for the purpose of repairing and rebuilding said house, but the plaintiffs failed and refused to permit appellant to repair and rebuild the damaged house, and that by reason thereof plaintiffs lost their right to recover. It further pleaded that, if plaintiffs are entitled to recover any sum, it was only such sum as was reasonably necessary to repair and replace said building, and put it in the same condition as it was before the damage and loss occurred, which it alleged to be the sum of $375. The plaintiffs, by supplemental petition, pleaded in replication that the building was so damaged and injured by the cyclone that it was incapable of being repaired, so as to be in like character and condition as it was before said damage occurred, and specially denied that defendant ever offered to rebuild said building, but averred that it offered it the opportunity to rebuild, and that such offer was declined by the defendant. The case was tried before a jury, and the trial resulted in a verdict in favor of plaintiffs for $1,025, upon which the judgment was rendered from which this appeal is prosecuted.

Conclusions of Fact.

On the 27th day of March, 1894, the appellant, in consideration of $15, issued to J. S. Woodward and J. Hull, trustees, their policy of that date, indemnifying them against loss or damage against windstorms, cyclones, or tornadoes, to the amount of $1,500, on a one-story frame church building, occupied as a church, and situated in Milford, Tex., for the term of three years from the 27th day of March, 1894, at 12 o'clock, noon, to the 27th day of March, 1897, at 12 o'clock, noon. The policy provides that the amount of loss or damage shall be estimated according to the actual cash value of the property at the time of the disaster, and that such loss or damage shall in no case exceed what it would then cost to repair or replace the same, deducting therefrom a suitable amount for any depreciation of the property, from use or otherwise. It is stipulated that it shall be optional with the insurance company to repair, rebuild, or replace the property lost or damaged with another of like kind and quality, within a reasonable time, giving notice of their intention to do so. On the 30th day of April, 1896, during the time the policy was in force, an immediate loss and damage to the building named in the policy occurred by a cyclone or windstorm, which damage, so done to the property, amounted to the sum of $1,025, which damage is estimated according to the actual cash value of the building at the time of the disaster, and does not exceed what it would have cost to repair or replace said building. After the loss occasioned by the cyclone, the appellant, through its agent, offered to repair the building, upon condition that appellees, as trustees, would release the insurance company from all liability upon the policy before the work of repairing was commenced. The appellees expressed their willingness for the company to undertake the repairing of the building at its own risk, but refused to sign anything to release the company of its liability before the repairs were commenced or made. They, however, informed appel...