Philadelphia Underwriters Agency of F. Ass'n v. Brown

• Decision Date: 21 November 1912
• Citation: 151 S.W. 899
• Court: Texas Court of Appeals
• Parties: PHILADELPHIA UNDERWRITERS AGENCY OF FIRE ASS'N OF PHILADELPHIA v. BROWN.

151 S.W. 899

PHILADELPHIA UNDERWRITERS AGENCY OF FIRE ASS'N OF PHILADELPHIA v. BROWN.

Court of Civil Appeals of Texas. Texarkana.

November 21, 1912.

Appeal from Wise County Court; E. M. Allison, Judge.

Action by J. B. Brown against the Philadelphia Underwriters Agency of the Fire Association of Philadelphia. From an order sustaining a motion to strike out an answer, defendant appeals. Reversed and remanded.

Carswell & Carswell, of Decatur, and Crane & Crane, of Dallas, for appellant. McMurray & Gettys, of Decatur, for appellee.

HODGES, J.

This suit was instituted by the appellee against the appellant in the county court of Wise county upon two policies of insurance, one for $550 and the other for $250. By the terms of these policies the appellant insured the appellee in an amount not exceeding the sums therein stated against loss or damage by fire to a certain two-story shingle-roof store building situated in Boyd, Tex. About the 2d of December, 1909, and during the period covered by the policies, the property was totally destroyed by fire. Upon a refusal of the company to pay the amount of the insurance, the appellee instituted this suit. Appellant answered by a general demurrer and a general denial, and by special answer averred that each of the contracts sued on contained the following stipulation: "This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy." It was further alleged that plaintiff had another contract of insurance on the property in the sum of $400; that defendant was informed and believed that this other policy was issued by the Texas Fire Insurance Company of Ft. Worth; and that this insurance was issued either prior or subsequent to the issuance of the policies sued on, and for that reason the policies here involved were null and void. It was also charged that the fire originated by the act, design, or procurement of the plaintiff for the purpose of collecting the insurance. Appellee filed a supplemental petition wherein he denied generally all of the allegations contained in defendant's answer, and further pleaded a waiver by the insurance company of the provisions in the contract sued on with reference to other insurance, alleging that appellant's local agent knew of the existence of this additional insurance and consented thereto. On April 27, 1911, which appears to have been the term at which this case was tried, the appellant filed a supplemental answer wherein it alleged that on the 26th of January preceding this suit was called for trial the parties appeared and announced ready, the jury was impaneled, the evidence presented, and the argument of counsel heard, and the jury was charged and retired to consider its verdict; that, after the jurors had been deliberating for some time, they returned into open court, and reported that it was impossible to agree upon a verdict; that, the court being on the point of discharging the jury without a verdict, counsel for plaintiff and defendant then and there mutually agreed, the plaintiff being present and assenting thereto, that the jury retire and a majority bring in a verdict, by which each party would abide, and a judgment should be rendered upon the same which would be conclusive between the parties as to matters involved in that suit; that in pursuance with that agreement the jury retired, and a majority thereof brought into court a verdict for the defendant; that this verdict was received and filed, and a judgment thereon was duly entered on the minutes of the court for the defendant. It is further alleged that the judgment rendered thereon was binding upon the parties to this suit, and that the action of the court in setting aside said verdict and judgment and granting a new trial after the verdict had been returned and received and the judgment rendered and entered upon the minutes of the court, over the objection of defendant and without its consent, was coram non judice and void. The appellee filed a motion to strike this answer out (1) because it was not a proper pleading and did not constitute a supplemental answer, it not being in reply to anything set up by plaintiff in his supplemental pleadings; and (2) because the allegations set forth in this supplemental answer were not true in fact. The motion then proceeds to set out in detail what it is claimed the...