Pennsylvania Fire Ins. Co. v. Waggener

• Decision Date: 03 November 1906
• Citation: 97 S.W. 541
• Parties: PENNSYLVANIA FIRE INS. CO. v. WAGGENER et al.
• Court: Texas Court of Appeals

97 S.W. 541

PENNSYLVANIA FIRE INS. CO. v. WAGGENER et al.

Court of Civil Appeals of Texas.

November 3, 1906.

Appeal from District Court, Lamar County; T. D. Montrose, Judge.

Action by F. W. Waggener and others against the Pennsylvania Fire Insurance Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Crane & Gilbert, for appellant. Moore, Park & Birmingham, for appellees.

RAINEY, C. J.

Suit on a fire insurance policy for $1,000, issued by the appellant to F. W. Waggener, a resident of the Choctaw Nation, Ind. T., on a building at Hugo, Ind. T., owned by said Waggener; said policy containing a loss clause payable to Abe and Louis Goldman, "as their interest may appear," they living in Lamar county, Tex. Plaintiffs alleged the loss of the building by fire, that notice had been given, proof of loss, etc., that on the back of the policy was an assignment from F. W. Waggener to B. A. and B. E. Waggener, that this was without consideration, that the policy had never been delivered and they had no title or interest in it, that they had one other policy on the building for $1,500, and prayed for judgment. Defendant pleaded the general denial, and specially a forfeiture by breach of various clauses in the policy, which will be referred to in this opinion further on; also that the policy was issued on property in the Indian Territory, as an Indian Territory contract, and the laws of the United States governing same forbade the transfer of any policy without the consent of the defendant company indorsed thereon in writing or added thereto; also that plaintiff Waggener had no title to the ground on which the building stood, which made the building a chattel, and the subsequent mortgage to the Goldmans rendered the mortgage void; that Dargan & Ragland, of Paris, Tex., as agents of defendant, had no authority to represent it in the Indian Territory. The plaintiff by supplemental petition replied by general denial, and specially that the conveyance from him to the Goldmans, and from the Goldmans back to him, was for the purpose merely of changing the form of securing an indebtedness and lien on the property that had theretofore existed at the time of the insurance, of which the company had knowledge, and that the defendant company had knowledge of the indorsements thereon before the fire; that the insurance procured did not exceed three-fourths of the reasonable cash value of the property, $4,000, and, if it was greater, plaintiff was mistaken in his judgment as to its value; and that the local agent, Gill, was well acquainted with the property and its value long before the insurance was procured, and knew that $2,500 insurance was carried on the building. A trial resulted in a verdict and judgment in favor of plaintiff for $800.

There was a motion made by the defendant to the court below that judgment non obstante veredicto be rendered for defendant, for the reason that the uncontroverted evidence showed that the property was insured for more than three-fourths of its value, when the policy contained a warranty that the insured would not place more insurance on the property than three-fourths of its value. A motion for a new trial, based on the same ground, was also made by defendant, and both motions were overruled by the court. This action of the court forms the basis for appellant's first assignment of error. The court refused a special instruction, requested by defendant, to the effect that if the property was insured for more than three-fourths of its value to find for the defendant, and this is the basis for the fifth assignment of error. The sixth assignment of error is based on the following paragraph of the court's charge, viz.: "If you further find from the evidence that plaintiff F. W. Waggener did not procure concurrent insurance on said property (meaning the property covered by this policy) in excess of three-fourths of the actual cash value of the property insured, or, if he did, it was done by him in good faith, without any intention to procure a greater amount of insurance than three-fourths of the actual cash value of the said property, then you will find for the plaintiff." The foregoing three assignments relate practically to one proposition and they will be considered together.

The policy of insurance contained the following clause: "It is understood and agreed to be a condition of this insurance that, in the event of loss by fire on the property covered under this policy, this company shall not be liable for an amount greater than three-fourths of the actual loss on each item of property covered by this policy (not exceeding the amount insured on each such item), and in the event of additional insurance hereon this company shall be liable for its proportion only of three-fourths of such loss on each item, not exceeding the amount insured on each such item. Other concurrent insurance permitted, but total insurance shall at no time exceed three-fourths of the actual cash value of each item of the property hereby covered." The estimate of value of the building made by the different witnesses varied considerably. Plaintiff stated that it was worth $4,000 when bought. Two others stated it was worth $3,500 when destroyed. Another one stated it could be reproduced for $2,480, but on cross-examination stated he knew nothing of the value of buildings in Hugo, except from what it would cost to construct them. Another, a journeyman carpenter, who had helped construct the building, stated it was worth $1,500. After the loss of the building a proof of loss, sworn to by plaintiff, was made, in which the value was placed at $2,480. In reference to this plaintiff testified that he...