Orient Ins. Co. v. Parlin & Orendorff Co.

• Decision Date: 03 October 1896
• Citation: 38 S.W. 60
• Parties: ORIENT INS. CO. v. PARLIN & ORENDORFF CO.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

38 S.W. 60

ORIENT INS. CO. v. PARLIN & ORENDORFF CO.¹

Court of Civil Appeals of Texas.

October 3, 1896.

Appeal from district court, Dallas county; Edward Gray, Judge.

Action by the Parlin & Orendorff Company against the Orient Insurance Company on a fire insurance policy. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

This appeal is prosecuted upon an agreed statement, which clearly presents the only issue involved in the case. The agreed statement is as follows: "No. 12,827. Parlin & Orendorff Company vs. Orient Insurance Co. In 44th District Court, Dallas County, Texas. The parties hereto desiring to avoid the necessity of setting out at length all the proceedings had in this case, and, as permitted by Art. 1414, Revised Statutes [1879], hereby agree upon the following brief statement of the case, and of the facts proven and admitted upon the trial of this cause, which fully present to the appellate court the issues involved herein: Statement of the case: This suit was instituted in the 44th district court of Dallas county, Texas, February 1, 1894, by plaintiff, Parlin & Orendorff Company, against the defendant insurance company, upon a policy of insurance issued by the latter to the former, November 23, 1892, insuring plaintiff in the sum of $1,200 on a one-story brick, metal-roof building, stated in the policy to be situated on leased grounds. The policy was attached to plaintiff's petition, and made a part thereof. A trial was had on June 15, 1895, resulting in a judgment for plaintiff for the full amount of the insurance, with interest, amounting to thirteen hundred and five dollars ($1,305)."

Facts proven and admitted: "(1) The insured building was a one-story brick, metal-roof building, occupied by plaintiff as an agricultural implement warehouse. The lot on which the building was situated did not belong to plaintiff, but belonged to one from whom plaintiff had rented it for a term of five years. (2) After renting said lot from the owner thereof, plaintiff put up and constructed said building at his own cost, furnishing all the labor and material therefor. At the time of renting said lot to plaintiff, it was agreed between plaintiff and the owner, and was a part of the rental contract, that the insured building which plaintiff then contemplated putting up on said lot should, together with all the material used in its construction, remain the property of plaintiff, and that plaintiff had the right to remove the same from said lot; and it was agreed and admitted that said building and the material of which it was constructed belonged to plaintiff at the time of the loss. At the time of the fire, plaintiff's lease of said lot had not expired. (3) The policy sued on is in the usual form, applicable alike to real estate and personal property. In the written portion thereof describing the insured building, it was represented that it was on leased ground. (4) Plaintiff proved everything necessary to entitle it to recover herein, and is entitled to recover the amount for which judgment was rendered, provided said building is not personal property, as that term is used and explained in article 2971, Rev. St. 1879. If said building was personal property, as that term is used in article 2971, then plaintiff's evidence, as well as defendant's, shows that plaintiff is not entitled to recover herein, and that the judgment of the lower court should be reversed, and rendered in the appellate court in favor of the defendant, upon defendant's plea that suit had been prematurely instituted herein. (5) It is agreed that said policy and the pleadings of both or either of the parties hereto be omitted from the transcript, as it is intended that this agreement should fully present every issue involved in this cause."

Leake, Henry & Reeves, for appellant. McCormick & Spence, for appellee.

FINLEY, J. (after stating the facts).

Article 2971, Rev. St. 1879, referred to in this agreement, is as follows: "A fire insurance policy, in case of a total loss by fire of property insured, shall be held and considered to be a liquidated demand against the company for the full amount of such policy; provided, that the provisions of this article shall not apply to personal property." The proviso of this statute excludes from its operation personal property; and appellant contends that the brick building covered by the policy here sued upon was personal property, within the meaning of such proviso. The contention is that the fact that the title to the land was not in the assured, and that the building was constructed upon the land by the assured under a lease, which recognized...