Springfield Fire & Marine Ins. Co. v. Whisenant

• Decision Date: 28 November 1922
• Docket Number: (No. 869.)
• Citation: 245 S.W. 963
• Court: Texas Court of Appeals
• Parties: SPRINGFIELD FIRE & MARINE INS. CO. v. WHISENANT.

Page 963

245 S.W. 963

SPRINGFIELD FIRE & MARINE INS. CO. v. WHISENANT.

(No. 869.)

Court of Civil Appeals of Texas. Beaumont.

November 28, 1922.

Rehearing Denied December 13, 1922.

Appeal from Angelina County Court; Jno. F. Robinson, Judge.

Suit by S. J. Whisenant against the Springfield Fire & Marine Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Thompson, Knight, Baker & Harris, of Dallas, for appellant.

E. J. Conn and John S. Redditt, both of Lufkin, for appellee.

O'QUINN, J.

Suit by appellee against appellant on an insurance policy. Tried before the court without a jury. Judgment for appellee, and appellant brings error.

Appellant first complains that the "court should have rendered judgment for it since the undisputed evidence showed that the property described in the policy sued on was destroyed while at a different location from that set out in the policy." This contention grows out of the fact that the policy sued on shows the property insured to be "household furniture * * * contained in the one-story shingle roof brick dwelling occupied by owner with another family situated * * * east side of H. C. & W. T. Railroad in Davisville, Texas," while the proof showed that the property destroyed was household furniture contained in a "four-room bungalow frame building, situated about one-half mile from Davisville, on the east side of the H. E. & W. T. Railroad."

The record discloses that appellee did not himself procure the policy, but that J. H. Clayton, who resided at Davisville, at the written request of appellee, and who furnished said Clayton with a written list of the property to be insured, took the list to the local agent of appellant, described the premises to the agent, procured the policy, and paid the premium for same. Clayton testified that he did not tell the agent that the property was situated in a brick dwelling, but that he was positive that he told the agent that it was in a frame dwelling. Appellee testified that the furniture, at the time it was insured, was in his residence, and remained there until it was destroyed by fire, and that it was not at any time in a brick house, and that there was no brick house on the east side of the H. E. & W. T. Railroad at Davisville. Appellant, in its answer, alleged that if appellee held any policy covering any household goods, the said goods were insured while contained in a certain one-story brick dwelling situated on the east side of the H. E. & W. T. Railroad at Davisville, Tex., and that appellee had not suffered any loss or damage to household goods while situated in such brick building. Appellee replied by supplemental petition, by general denial, and specially pleaded, in effect, article 4874a, Vernon's Sayles' Civil Statutes.

It is undisputed that the property insured by the policy in question was the property destroyed. It is also undisputed that the property, at the time it was insured, was situated in the same house in which it was burned. It is therefore apparent that appellant's agent, in filling in the blank policy, inadvertently wrote the word "brick" instead of "frame," because the facts all show that no such brick house was at Davisville, and that appellee's dwelling was a frame house situated east of the railroad mentioned at Davisville. It could not have been to the interest of appellee or his representative, Mr. Clayton, to have misrepresented the fact as to the nature of the house in which the property was situated to appellant's agent, and no motive for any such false statement appears. It is undisputed that the household furniture was at no time moved out of the house in which it was situated at the time of the issuance of the policy, nor is there any dispute as to its destruction or value. But, if there was a misdescription of the house in which the property insured was located, under all the facts, we do not believe that such breach of any of the warranties or provisions of the policy contributed to bring about the loss of the property. The burden was upon appellant to plead and prove that if there was any such breach of the warranties or provisions of the policy, as contended, that same contributed to the destruction of the property. Article 4874a, Vernon's Sayles' Civil Statutes; Texas Mutual Fire Ins. Co. v. Richbourg (Tex. Civ. App.) 243 S. W. 590; Westchester Fire Ins. Co. v. Roan (Tex. Civ. App.) 215 S. W. 985; Standard Fire Ins. Co. v. Buckingham (Tex. Civ. App.) 211 S. W. 531. Appellant relies upon the case of British-American Assurance Co. v. Miller, 91 Tex. 414, 44 S. W. 60, 39 L. R. A. 545, 66 Am. St. Rep. 901, to sustain its contention. That case held that where a policy covered personal property situated in one house, and the articles were destroyed while situated in another and different house, recovery could not be had. That decision was rendered January 27, 1898, while the law invoked by appellant (article 4874a, supra) was passed in 1913, long after said decision had been rendered. The assignment is overruled.

Appellant insists that the court erred in rendering judgment for appellee, in that appellee failed to make proper proof of loss as was required by the policy. The assignment is overruled. The undisputed evidence shows that immediately after the fire, appellee went to the local agent of appellant and informed him of the loss, and requested a blank for the purpose of making proof; that said agent told appellee that he, the agent, did not have a blank on hand, but that he would write for some, and did then and there dictate a letter to an adjuster to send him a blank form for making proof; that Whisenant, appellee, was willing to make proof; that said agent received a letter from the Dallas office of appellant, advising that the Whisenant loss would be handled through the Dallas office; that appellee again called upon appellant's agent, and requested a blank form for making proof, but same was not furnished him, nor is there anything in the record to show why same was not done. Later, appellee made out a list of the property destroyed, itemized and separately valued, duly verified by his oath, and delivered same to appellant more than 60 days before the filing of this suit. It is further shown that appellee never at any time received any letter or communication from appellant. Under...