Underwriters' Fire Ass'n v. Palmer & Co.

• Decision Date: 13 May 1903
• Citation: 74 S.W. 603
• Parties: UNDERWRITERS' FIRE ASS'N v. PALMER & CO.
• Court: Texas Court of Appeals

74 S.W. 603

UNDERWRITERS' FIRE ASS'N v. PALMER & CO.

Court of Civil Appeals of Texas.

May 13, 1903.

Appeal from District Court, San Jacinto County; L. B. Hightower, Judge.

Action by J. M. Palmer, Jr., and others, copartners doing business as Palmer & Co., against the Underwriters' Fire Association. From a judgment for plaintiffs, defendant appeals. Affirmed.

Harry P. Lawther and P. E. McMahon, for appellant. Robinson & Hansbro and McKinney & Hill, for appellees.

NEILL, J.

Appellees, a partnership under the name of Palmer & Co., composed of J. M. Palmer, Jr., N. C. Palmer, and B. A. Ziegler, brought this suit on a policy of fire insurance issued in favor of the firm by the appellant on September 24, 1900, covering a one-story shingle-roof building situated on lot No. 4, block 7, of the town of Oakhurst, San Jacinto county, with a stock of merchandise in the building, office furniture and fixtures; the insurance being $300 for the building, $50 for the office furniture and fixtures, and $900 for the stock of merchandise. The policy described the building as situated on lot 7, block 4. This description is alleged as a mistake, and that the building and property really insured was situated on lot 4, block 7, which was the one intended by the parties to be insured. It is alleged that on the 25th day of October, 1900, while the policy was in force, the property described therein was totally consumed by fire. The policy contained the usual "iron-safe clause," as well as one vitiating it in case of any fraud or false swearing by the insured touching any matter relating to the insurance or subject thereof, whether before or after the loss. It also provides that if the interest of the insured be other than unconditional and sole ownership, or if the subject of insurance be a building on ground not owned by the insured in fee simple, the policy will be void.

The defenses pleaded are (1) the failure of the insured to comply with the iron-safe clause; (2) that appellees were not the sole and unconditional owners, in fee simple, of the building, at the date of the insurance policy; and (3) that they did not truly state their interest described in the policy, and had been guilty of false swearing touching matter relative to the insurance. Appellees, by supplemental petition, denied the defensive matters pleaded, and averred that appellant, before the issuance of the policy, was fully informed of outstanding unpaid vendor's lien notes upon the lot and building.

The uncontradicted evidence shows that the building insured, and the fixtures therein, and the stock of merchandise in the building covered by the policy, were totally destroyed by fire on the 26th day of October, 1900. The only issues of fact were (1) as to whether there was a breach of the iron-safe clause; (2) whether there was fraud on the part of the appellees in representing that J. M. Palmer, Jr., and B. A. Ziegler constituted the firm of Palmer & Co., and concealing the fact that N. C. Palmer was one of its members, and fraudulently claiming that the property, real and personal, covered by the policy, belonged to J. M. Palmer, Jr., and B. A. Ziegler. These issues were all submitted to the jury, who found on them in favor of the appellees; and, from an examination and consideration of the statement of facts, we have concluded that the evidence is reasonably sufficient to sustain the verdict.

Conclusions of Law.

The appellant requested the court to instruct the jury to find in its favor in the event that certain inventories and books kept by plaintiffs were not produced and exhibited to appellant for examination after the fire. The failure of the court to give the charge without qualification is assigned as error. The inventories, books, etc., referred to in the charge, could not be produced or exhibited for the reason that they were destroyed —while locked in an iron safe in which they were kept—by the fire at the time the building was burned. From the fact that they were so destroyed, the appellant contends that they...