Providence-Washington Ins. Co. v. Boatner

• Decision Date: 17 November 1920
• Docket Number: (No. 6452.)
• Citation: Providence-Washington Ins. Co. v. Boatner, 225 S.W. 1115 (Tex. App. 1920)
• Parties: PROVIDENCE-WASHINGTON INS. CO. et al. v. BOATNER.
• Court: Texas Court of Appeals

225 S.W. 1115

PROVIDENCE-WASHINGTON INS. CO. et al. v. BOATNER.

(No. 6452.)

Court of Civil Appeals of Texas. San Antonio.

November 17, 1920.

Rehearing Denied December 22, 1920.

Error from District Court, Nueces County; W. B. Hopkins, Judge.

Suit by R. H. Boatner against the Providence-Washington Insurance Company and others. To review judgment for plaintiff, defendants bring error. Judgment reversed, and judgment rendered.

Locke & Locke, of Dallas, and S. A. Early, of Corpus Christi, for plaintiffs in error.

Kleberg, Stayton & North, of Corpus Christi, and Atkinson & Atkinson, of Houston, for defendant in error.

COBBS, J.

This suit was brought to recover on the four policies of insurance, one issued by the Home Insurance Company and three by Providence-Washington Insurance Company. Separate suits were instituted against each of the several companies, viz., three against the Providence-Washington Insurance Company, which were consolidated, and one against the Home Insurance Company, tried at the same time, together. The cases were tried by a jury and two separate judgments rendered in favor of defendant in error. In the first three cases the judgment was for $4,750.13, in favor of defendant in error, against said Providence-Washington Insurance Company, and a judgment was rendered against the Home Insurance Company for $3,124.60, in favor of defendant in error; both judgments bearing 6 per cent. Interest from date.

It was alleged the policy in the Home Insurance Company, No. 50, was issued April 19, 1916. The Providence-Washington policy upon the building, No. 137235, was issued April 20, 1916; the Providence-Washington $1,000 policy upon the merchandise, No. 123396, was issued May 24, 1915; and the last policy, No. 137234, upon both merchandise and fixtures, was issued April 20, 1916. The fire occurred on the night of May 4, 1916, resulting in a total loss of the building, fixtures, and merchandise, excepting some salvage, having a value of $50. At the trial the Providence-Washington Insurance Company admitted its liability upon the policy covering the building, but it denied liability upon the policies issued on the stock and defended upon the ground of a violation by the assured of the warranty against unpermitted concurrent insurance. There was no dispute that such violation did occur, the defendant contending that by virtue of the so-called technicality act, Vernon's Sayles' Revised Statutes of Texas, § 4874a, the effect of such excessive concurrent insurance was obviated.

The trial court took this point of view. Thus the only issue submitted to the jury was the value of the stock of merchandise and the fixtures at the time of the fire. The jury found the value of the stock to have been $6,500, and the value of the fixtures, $1,050. In pursuance of this verdict, the court rendered judgment against the Home Insurance Company for $3,124.60, and against the Providence-Washington Insurance Company for $4,750.13.

Each policy occupied about 15 pages in the transcript as exhibits to the petitions, and each policy has more than 110 separate paragraphs, besides several pages of blank forms. The paragraphs in the several policies are almost precisely similar. The transcript contains about 160 pages with cost bills. The statement of facts contains the same policies at length, consisting of 150 pages. As much in the lengthy policies is immaterial, and often identical in terms, we fall to see any object in placing all these provisions in the record, incumbering and thereby making a cumbersome record to handle, aside from the unnecessary costs. It was necessary only for the record to show those portions regarded as material to the issues.

Defendants filed exceptions, pleaded a general denial and special defenses, including breach of the terms of the policies and demanding forfeiture for overinsurance, etc.

The policy in the Home Insurance Company was issued before the fire, but not delivered to the appellee until after the fire, and he is not shown to have had knowledge or notice thereof until after the loss.

The first assignment is based upon the following requested, but refused, charge:

"The plaintiff is not entitled to recover from defendants any sum under the policies in suit except policy No. 137225 (for $1,000). You, therefore, will return a verdict in favor of the defendants."

All the assignments complain of and relate practically to the same subject and to the refusal of the court to give requested charges No. 1 and the others in respect to similar provisions of overinsurance, and the right to forfeit, predicated upon the contention that the provision as to overinsurance, stipulated in the policies, whether valid or invalid, without consent, renders all policies affected thereby void and uncollectible.

It is contended that the action taken by defendant in error, in adopting the Home Insurance policy, presenting a sworn claim thereon, and bringing suit thereupon, claiming benefits under it, amounts to a ratification of the policy, validating it so that it has the same effect upon the other insurance as though issued legally and delivered prior to the fire. He made application for the insurance and got credited for the premium, though he never followed it up to ascertain whether it had been issued. Becoming dissatisfied in not hearing further about it, on the very next day, April 20, 1916, he procured the insurance policy No. 137235, Providence-Washington Insurance Company, for $1,000, on the warehouse. Total concurrent insurance secured on the building and furniture, to wit, $4,750; on building $4,000, and $750 on...