Security Nat. Fire Ins. Co. v. Kifuri

• Decision Date: 18 February 1931
• Docket Number: No. 5358.,5358.
• Citation: 36 S.W.2d 147
• Parties: SECURITY NAT. FIRE INS. CO. et al. v. KIFURI.
• Court: Texas Supreme Court

36 S.W.2d 147

SECURITY NAT. FIRE INS. CO. et al. v. KIFURI.

No. 5358.

Supreme Court of Texas.

February 18, 1931.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Suit by A. Kifuri against the Security National Fire Insurance Company and others. A judgment for plaintiff was affirmed by the Court of Civil Appeals [12 S.W.(2d) 235], and defendants bring error.

Reversed, and remanded for a new trial.

Nelson Lytle, T. M. West, and Hardy & Hardy, all of San Antonio, for plaintiffs in error.

David E. Hume, of Eagle Pass, for defendant in error.

CRITZ, C.

This suit was originally filed by A. Kifuri, hereinafter called plaintiff, against the Security National Fire Insurance Company, the Fireman's Fund Insurance Company, and the National Liberty Insurance Company, on three insurance policies in the sums of $3,000, $3,000, and $4,000, respectively. All of these policies insured the property therein protected for one year, from the 16th day of July, 1927; all expiring July 16, 1928.

All three of the policies insured the property described therein in the following language:

"Mercantile Building Form.

"$3,000.00 On the one story metal roof G. I. & Stucco Building and additions attached thereto, including foundations, awnings (except cloth awnings), permanent piping and fixtures for heating, lighting and water service, while occupied for the following purposes only: Ice Factory, and situated as follows: No. 444 and 445 S. side Church Street, in Eagle Pass, Texas, being Lot No. 1 & 2, Block No. 7R5NH, Map Page 8, File No. 769.

"$ Nil On Store and Office Furniture and Fixtures, including Counters, Shelving, Iron Safes, Typewriters and Cash Registers, while contained in the building above described.

"$ Nil On ____

"No insurance attaches under any of the above items unless a certain amount is specified and inserted in blank space immediately preceding the item."

All three of the policies also contained the following clauses with reference to concurrent insurance:

"Total concurrent insurance permitted, including this policy, $15,000.00 as follows: $15,000.00 on Building; $ ____ on Furniture and Fixtures; $ ____ on ____.

"It is understood and agreed that no other insurance is permitted unless the total amount allowed, including this policy, is entered in blank space in paragraph next above."

All of the policies also contain the following clause, with reference to proportion of liability:

"This company shall not be liable under this policy for a greater proportion of any loss on the described property, or for loss by and expense of removal from premises endangered by fire, than the amount hereby insured shall bear to the whole insurance, whether valid or not, or by solvent or insolvent insurers, covering such property, and the extent of the application of the insurance under this policy or of the contribution to be made by this company in case of loss, may be provided for by agreement or condition written hereon or attached or appended hereto. Liability for re-insurance shall be specifically agreed hereon."

The suit was based on three respective Texas Standard fire insurance policies issued by the above-named three companies, and in his petition the plaintiff alleges that the building was a total loss, and he sued each insurance company for the full amount of each insurance policy. The petition, however, had the policies attached to it, and it makes them parts thereof. The prayer for relief is for judgment, as upon a liquidated demand, against the two defendants first mentioned for $3,000 and interest each, and the third for $4,000 and interest, together with costs, and the petition also prays for general and special relief.

The record shows that the three insurance companies were joined as codefendants in one suit over their protest and that each filed separate pleas in abatement which were duly overruled, after which they filed separate pleas of misjoinder of causes of action and...