Queen Ins. Co. v. Jefferson Ice Co., Case No. 1888.

• Decision Date: 30 October 1885
• Docket Number: Case No. 1888.
• Citation: 64 Tex. 578
• Court: Texas Supreme Court
• Parties: QUEEN INSURANCE CO. v. JEFFERSON ICE CO.

64 Tex. 578

QUEEN INSURANCE CO.

v.JEFFERSON ICE CO.

Case No. 1888.

Supreme Court of Texas.

Oct. 30, 1885.

APPEAL from Marion. Tried below before the Hon. W. P. McLean.

The appellee, on April 7, 1885, filed suit in the district court of Marion county, Texas, against appellant, on a fire insurance policy issued by appellant. The petition of appellee alleged in substance: That on the 8th day of October, 1884, it was the owner of certain lots in Jefferson, together with the building thereon situated, and an ice machine with all its attachments and apparatus, situated in the building; that it had on storage a lot of beer in kegs; that the building was worth the sum of $1,500, the beer in kegs was worth the sum of $600, and the ice machine with its attachments was worth the sum of $7,499.25; that on that date the appellee procured insurance with the appellant, and The Fire Association of Philadelphia, and The American Fire Insurance Company, through Beard & Claiborne, the common agents of the three companies; that appellant issued a policy of insurance to appellee on the property as follows: $500 on the building, $1,833 on the engine and boiler, $666.75 on condenser, freezing tank and fixtures, pumps and tools, $200 on their beer in kegs--making the total insurance of appellant on the property $3,199.75; that the property was insured for the same amounts, and in the same way, in the two policies issued by the other two companies herein referred to; that in all of the policies there was a mistake mutual to both appellant and appellee in the preparation, in this, that it was not the intention of the parties, in the preparation of the policies, to place separate insurance on the several items of property covered by the policy, but to take in the aggregate the amount of insurance specified in the policy, on the whole of the property, without reference to the separate values of the several parts of the property; that on October 29, 1884, the property covered by the policy of appellant was totally destroyed by fire; that the building at the time of the fire was of the value of $1,500, and the beer in kegs was of the value of $600, and the ice machine was of the value of $8,997; that the boiler and engine, taken separately, were of the value of $3,000, and the condenser, tank, fixtures and tools were of the value of $4,977.

Appellee prayed that the policy of insurance sued upon be reformed, so as to express the true contract of the parties, and that appellee have judgment for the full amount of the policy.

Appellant, in its first amended original answer, filed June 3, 1885, set up the following defenses:

First. General demurrer.

Second. Special exceptions to the sufficiency of the allegations in appellee's petition, relating to the alleged mistake in the policy of insurance sued upon.

Third. General denial.

Fourth. Special denials that there was a mistake in the preparation of the policy, and that appellant intended to insure said property for its full value.

Fifth. Special plea that under the policy the appellant is liable for only three-fourths of the loss, not exceeding the amount of the policy, and that there was additional and concurrent insurance in three other companies, amounting in the aggregate to the sum of $6,399.50; that under the policy the appellant is only liable to pay to appellee such proportion of three-fourths of the loss sustained by the plaintiff on the property, as the amount of insurance on the property in the policy of insurance sued upon bears to the whole amount of insurance on said property; and that in no event is appellant liable for an amount exceeding the amount specified in the policy.

Sixth. Special plea that there was an appraisement and arbitration between appellant and appellee.

The court overruled the appellant's general demurrer and special exceptions, except the sixth special exception, to which rulings appellant and appellee both excepted.

The appellee filed a trial amendment, to which appellant filed exceptions, which were by the court sustained, to which ruling of the court appellee excepted and declined to further amend.

The case was, thereupon, on the 11th day of June, 1885, tried before a jury, and there was a verdict and judgment for the appellee for the sum of $2,076.85.

Benners & Miller, for appellant, on the question of interest, cited: May on Insurance, § 476, and authorities there cited; Wood on Fire Insurance, § 436, and authorities there cited.

On the construction of the policy, they cited: Farmers & Drovers' Ins. Co. v. Curry, 13 Bush, 312;S. C., 26 Am. Rep., 194, and authorities there cited.

On the introduction of evidence, they cited: Orell v. Hampden Fire Ins. Co., 3 Gray (Mass.), 433; 2 Greenl. on Ev., §§ 376, 378.

Culberson & Culberson, for appellee, on the charge of the court, cited: East Texas Fire Ins. Co. v. Coffee, 61 Tex., 287;Endick v. Endick, 61 Tex., 559.

On the question of interest, they cited: Wood's Fire Ins., p. 4, sec. 2; R. R. Co. v. Jackson, 62 Tex., 209.

On the policy being a liquidated demand, they cited: R. S., art. 2971; Fletcher v. New York Ins. Co., 13 Fed. Rep., 526.

On the introduction of evidence, they cited: May on Insurance, § 588, and authorities there cited.

STAYTON, ASSOCIATE JUSTICE.

The policy sued upon in this case covered property personal and real; the different items of property covered by the policy, as well as the amount of insurance on each, being stated.

The policy provided, in the event of loss, the insured should bear one-fourth of the loss, and that in the event of other insurance, which could be made only with the consent of the insurer, the company should only be liable for its proportion of three-fourths of the cash market value at the time of the fire.

There was insurance of $500 on a house, under the policy issued by the defendant, and additional insurance on the same property by other companies, with its consent, which amounted to $1,000.

The house was entirely destroyed by fire, and was not shown to exceed $1,500 in value.

Under these facts the court was asked by the defendant to give the following instruction, which was refused:

“The jury are instructed that if they believe, from the evidence, that the building of plaintiff was insured by defendant for $500, and that there was $1,000 of concurrent insurance, and that the policy provides that in the event of loss the assured should bear one-fourth of the loss of the value of said property, then if you find that said building has been wholly destroyed, and its value was $1,500, the defendant is liable for only one-third...