Ruby v. Cambridge Mut. Fire Ins. Co., 16017
Decision Date | 22 June 1962 |
Docket Number | No. 16017,16017 |
Citation | 358 S.W.2d 943 |
Parties | Louis Dean RUBY et ux., Appellants, v. CAMBRIDGE MUTUAL FIRE INSURANCE COMPANY, Appellee. |
Court | Texas Court of Appeals |
E. D. Forbes, Dallas, for appellants.
Thompson, Knight, Wright & Simmons and Jerry P. Jones, Dallas, for appellee.
This suit was brought by appellants Louis Dean Ruby and wife, Peggy J. Ruby, against appellee Cambridge Mutual Fire Insurance Company for damages to wall-to-wall carpeting alleged by appellants to be insured under the terms of a policy issued by appellee on appellants' home.
The parties agreed on a written stipulation of facts. On September 21, 1959 damage in the amount of $232,08 caused by water was done to the wall-to-wall carpeting in appellants' home when something went wrong with a water heater resulting in water flooding portions of the house.
At the time a policy of insurance was in force and effect which, under Texas Physical Form of Loss 148, provided coverage as follows:
'7. The term 'Dwelling' is defined in SECTION IV of the policy of insurance in question as follows:
Appellants' residence is a building designed for occupancy by not more than two families. At the time in question it was appellants' residence as owner-occupant, not as a building landlord.
The carpeting was installed after the policy was issued. It was used solely in the building in the area in which it was placed and was cut to fit that area. It was stretched over the floor and held in place by pressing the carpeting over the points of small nails protruding from a 'tack board'. The 'tack board' was a narrow strip of wood placed on the floor next to the interior walls of appellants' residence and was nailed in some manner to the floor or the floor molding of the house. Neither the carrpeting in question nor the mat under it was glued or fastened to the floor or any other part of the house by any other means.
Beneath the carpeting there was a finished tile floor.
The only damage to the carpeting in question or to the appellants' residence upon removal of the carpeting would be small nail holes in the outer edge of the carpeting where it was attached to the 'tack board', and small holes in the flooring or molding of the house caused by removing the 'tack board'. The carpeting could be removed and used in whole or in part in another building.
On trial of the cause appellants would testify that it was their intention to make the carpeting a part of the dwelling and the only evidence appellee would introduce to controvert such testimony would be the manner in which the carpeting was laid and the circumstances surrounding the laying of the carpeting.
Upon purchasing the dwelling appellants executed a deed of trust to Fidelity Union Life Insurance Company, and a provision of the deed of trust would extend its coverage to include any wall-to-wall carpeting which was subsequently placed in the dwelling. Appellants' claim for damages for loss on building items covered by the policy includes the claim of Fidelity Union Life Insurance Company as mortgagee or trustee, if any.
The trial court concluded that to hold appellee liable under the terms of the policy it was necessary for appellants to establish by a preponderance of the evidence that the carpeting was a fixture, and that appellants failed to discharge their burden in that regard. Judgment was accordingly rendered that appellants take nothing.
In their first point on appeal appellants allege error on the part of the court in not rendering judgment on the special verdict as to the facts involved as a matter of law under the stipulation of facts.
In their argument appellants contend that the carpeting in question is a fixture, therefore under the terms of the policy must be considered 'legally a part of' appellants' dwelling. With this contention we do not agree.
The exact meaning of the term fixture has never been definitely fixed. But the term has been broadly defined as 'something that is personal in its nature but so annexed to realty as to have become a part of the realty.' See 25 Tex.Jur.2d 392, 393, and cases there cited.
No general rule applicable to every case can be laid down for testing whether property is a fixture. A rule often applied is as follows: (1) Has there been a real or constructive annexation of the property in question to the realty? (2) Was there a fitness or adaption of the article to the uses or purposes of the realty with which it is connected? (3) Was it the intention of the party making the annexation that the chattel should become a permanent accession to the freehold? 25 Tex.Jur.2d 394, 395.
Another test frequently employed by courts in determining whether an article is a fixture is whether the article can be removed...
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