Switzerland Gen. Ins. Co. v. Gulf Ins. Co.

• Decision Date: 09 July 1948
• Docket Number: No. 13937.,13937.
• Citation: 213 S.W.2d 161
• Parties: SWITZERLAND GEN. INS. CO., Limited, v. GULF INS. CO. et al.
• Court: Texas Court of Appeals

213 S.W.2d 161

SWITZERLAND GEN. INS. CO., Limited, v. GULF INS. CO. et al.

No. 13937.

Court of Civil Appeals of Texas. Dallas.

July 9, 1948.

Rehearing Denied July 30, 1948.

Appeal from District Court, Grayson County; W. C. Dowdy, Judge.

Action by Gulf Insurance Company and others against Switzerland General Insurance Company, Limited, for debt by way of equitable subrogation and assignment to plaintiffs of an insured's rights of recovery under fire policy of defendant. From an adverse judgment, defendant appeals.

Affirmed.

Freeman, Wolf, Keith & Milam, of Sherman, and Gullett & Gullett, of Denison, for appellant.

Strasburger, Price, Holland, Kelton & Miller and Royal H. Brin, Jr., all of Dallas, for appellees.

BOND, Chief Justice.

This is an appeal from a judgment of a District Court of Grayson County, Texas, for debt by way of equitable subrogation and assignment to the plaintiff-appellees (three fire insurance companies) against the defendant-appellant (another fire insurance company), growing out of a fire damage suffered by an insured holding insurance policies of each of the four companies.

On November 28, 1941, a fire occurred at a dwelling house owned by a Mr. John H. Perry, located at Belden Street in the City of Sherman, Texas, damaging Mr. Perry's personal property located therein to the extent of $916.47. Mr. Perry had purchased the property for his family homestead; had removed some of his household effects into the house, intending, on the following December 1st, 1941, to move and occupy the premises as his permanent residence.

At the time of the fire and for some years prior thereto, Mr. Perry owned and had his home at Wood Street, Sherman, living therein with his family; and had his personal effects, household and kitchen furniture, while located therein, including that removed to the new address, insured with the plaintiffs, Gulf Insurance Company, National-Ben Franklin Fire Insurance Company, and Employers Fire Insurance Company, in various amounts; at the same time, the insured had a policy of insurance in full force with the defendant, Switzerland General Insurance Company, Ltd., covering all unscheduled personal property belonging to Mr. Perry, wherever located in the State of Texas, except such as shall be located "in or on the premises of the domicile or other permanent residence of the assured."

After the fire, all four of the insurance companies denied liability. Each plaintiff-company claims that its policy did not apply to the loss sustained by Mr. Perry, because under its coverage the loss or damage to insured's property was limited to the Wood Street location, — an entirely different location from that where the fire occurred; and that its coverage had never been transferred, nor had its agent ever been asked to transfer such coverage; nor had it accepted notice of removal, in whole or in part, to fasten liability on it. The defendant-company claims that its policy did not apply because it expressly excluded coverage of loss by fire or other casualty of all unscheduled personal property of the insured located in any "permanent residence" of the insured; and that, the loss having occurred at his permanent residence, no liability attached perforce of its policy. Under such circumstances and "in order to prevent an honest insured from being unduly inconvenienced, and also to preserve the good name of insurance companies * * *," the plaintiff-companies proratably paid to Mr. Perry the total amount of his loss, amounting to $916.47; and, "for valuable consideration," obtained...