State Mut. Fire Ins. Co. v. Kellner

• Decision Date: 02 July 1914
• Docket Number: (No. 342.)
• Citation: 169 S.W. 636
• Parties: STATE MUT. FIRE INS. CO. v. KELLNER.
• Court: Texas Court of Appeals

Page 636

169 S.W. 636

STATE MUT. FIRE INS. CO. v. KELLNER.

(No. 342.)

Court of Civil Appeals of Texas. El Paso.

July 2, 1914.

Rehearing Denied October 5, 1914.

Appeal from District Court, Harris County; Norman G. Kittrell, Judge.

Action by Louis Kellner against the State Mutual Fire Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Mangum & Townsend, of San Antonio, and Ring, Carothers & Brown, of Houston, for appellant. Barkley & Green, of Houston, and Marsene Johnson, of Galveston, for appellee.

HARPER, C. J.

This is a suit by appellee, Louis Kellner, on a fire insurance policy issued by appellant, the State Mutual Fire Insurance Company, on July 1, 1911, insuring appellee's property against loss by fire to the amount of $2,000, in the amount and upon the following property, to wit: $1,000 on a two-story shingle roof, frame building; $900 on stock of merchandise in said building; and $100 on the store and office furniture and fixtures in said building — all of which property was destroyed by fire on the 3d day of February, 1912.

The appellant, defendant in the court below, pleaded breach of warranty on the part of appellee in failing to make inventories and prepare and keep a set of books as required by policy, and that thereby, and in accordance with the terms of the policy, the entire policy was rendered null and void.

The appellee excepted to all of the appellant's plea of breach of warranty and failure to comply with the provisions of the policy, in so far as the same were pleaded as a defense to the suit seeking to recover for the loss of the building and fixtures, on the ground that the same constituted no defense to the amount of insurance due on account of the loss of the building and fixtures.

The trial court sustained said demurrer, and held that the same set up no defense to appellee's rights to recover for the fixtures and building. The case was tried by the court, who rendered judgment for appellee in the sum of $1,100, with interest thereon at 6 per cent. from April 3, 1912, from which this appeal is perfected.

The assignments of error presented by appellant's brief urge that the policy sued upon was rendered entirely void by reason of the failure of appellee to comply with the following clause of the policy:

"The assured (Louis Kellner) will take a complete itemized inventory of stock on hand, at least once in each calendar year and within twelve months of the last preceding inventory, if such has been taken. Unless such inventory has been taken within twelve calendar months prior to the date of this policy, and together with a set of books, showing a complete record of business transacted since the taking of said inventory, is on hand at the date of this policy, one shall be taken within 30 days after the date of this policy, or in each or either case this entire policy shall be null and void."

There is no statement of facts in the record, and the finding of facts by the trial court are very meager.

The first paragraph of the findings, as it applies to the facts, is:

"There is no dispute as to the facts. The two policies described in the petition were issued, and the house was destroyed by fire before the expiration of the policies, and the plaintiff only seeks to recover for the loss of the building and fixtures under the policy issued July 1, 1911."

This finding by the trial court is in effect that the allegations of plaintiff are true, viz.:

"That on the 1st day of July, A. D. 1911, said defendant, in consideration of the payment of $45 to the defendant, insured plaintiff from the 1st day of July, A. D. 1911, to the 1st day of July, A. D. 1912, against all direct loss or damage by fire to an amount not exceeding $2,000, same being issued in the amounts and upon the property hereinafter described, to wit: $1.000 on the two-story shingle roof frame building while occupied for the purpose of a general mercantile store and dwelling, and situated on Chocolate Bayou, in Brazoria county, Tex., and being on lot No. 12 in block No. 45, such insurance on said building including the foundation awnings (except cloth awnings), permanent pipings, and fixtures for heating and water service; $900 on plaintiff's stock of merchandise, consisting principally of dry goods (work clothes), notions, etc., and groceries and other merchandise, such as is usually kept for sale in a general mercantile store, while contained in the building above described; and the further sum of $100 on the store and office furniture and fixtures, including counters, shelving, iron safe, typewriters, and cash registers while contained in the building above described. That on or about the 3d day of February, A. D. 1912, and while said above-described policies were in full force and effect, said general mercantile store and dwelling house, and all contents thereof, was completely and totally destroyed by fire, and at the time was the property of the plaintiff, and that the building used as such general mercantile store and dwelling house was, at the time of the destruction thereof, reasonably worth the sum of $1,800. That the furniture and fixtures thereon were, at the time of the issuance of said last-described policy, and at all times after said date, and up to the destruction thereof, the property...