Sun Mut. Ins. Co. v. Tufts
| Decision Date | 03 December 1898 |
| Citation | 50 S.W. 180 |
| Parties | SUN MUT. INS. CO. v. TUFTS et al. (BROOKS et al., Interveners).<SMALL><SUP>1</SUP></SMALL> |
| Court | Texas Court of Appeals |
Action by James W. Tufts against the Sun Mutual Insurance Company, in which Brooks Bros. intervened. From a judgment for plaintiff and interveners, defendant brings error. Modified.
Thompson & Wood, for plaintiff in error.
Appellant insurance company issued to Brooks Bros., interveners below, a policy insuring against loss by fire for $1,150, covering a soda fountain and fixtures for $650, carpets, tables, chairs, etc., for $150, and stock of candies, confectioneries, etc., for $350, with loss payable to J. W. Tufts, as his interest might appear. Said property was destroyed by fire during the life of the policy. The appellant declined to pay the loss, and J. W. Tufts brought suit, alleging that said policy was delivered to him, though not formally indorsed; that he had a lien on the soda fountain covered by said policy, given to secure an indebtedness due him by said Brooks Bros., which debt and lien was valid and existing at the time of the fire. Brooks Bros. intervened, claiming that they were entitled to any excess that might be recovered above the indebtedness due by them to the said Tufts. The insurance company answered by general and special demurrers, by general denial, and, specially, that said policy had been forfeited by violations of the iron-safe clause, the clause prohibiting the keeping and use of gasoline on the premises, the clause against increase of hazard, and the clause against fraud and false swearing. Plaintiff, by supplemental petition, alleged waiver, etc., of said clauses, and other facts preventing forfeiture. A trial was had before a jury, resulting in a judgment against the company for $811.87, of which sum $567.50 was in favor of plaintiff and the balance in favor of the interveners. The insurance company appeals. No briefs are filed by appellees.
The court below overruled defendant's exceptions, general and special, to plaintiff's petition, of which action the appellant complains; its proposition, in effect, being that no allegation of ownership in the property by the insured was made, which was necessary to warrant a recovery. The allegation of plaintiff that the policy was payable to him, as his interest might appear, and that he had a lien on the property to secure an indebtedness due him by Brooks Bros., which existed at the time of the fire, was a sufficient allegation of insurable interest in the plaintiff to show a right of action in him, and the court properly overruled the exceptions.
The court refused to give a special charge requested by defendant, to the effect that, if the assured was guilty of fraud and false swearing, defendant would be entitled to a verdict. The only evidence of fraud or false swearing is that one of the Brookses testified on the stand that an inventory had been made and was entered in the book, about which he was being interrogated, when it was first handed to one Florian, defendant's agent, while said Florian swore that said Brooks told him no inventory had been made, and none was entered in said book when first handed to him. We think this evidence did not raise the issue of fraud and false swearing, and the court did not err in refusing to give said instruction. If it should be conceded that such an issue was raised, the action of the court was harmless. The evidence pertained only to a violation of the iron-safe clause, and, as the policy was divisible, it could affect the recovery as to the loss on stock only, and it is evident, from the evidence and verdict, that nothing was allowed for loss on stock.
It is clear that the iron-safe clause was breached, but, as before stated, the evidence and verdict showing the loss on stock was excluded by the jury, the appellant has no...
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