United States Fire Ins. Co. of New York v. Rothwell

• Decision Date: 31 May 1933
• Docket Number: No. 1425-6050.,1425-6050.
• Citation: 60 S.W.2d 759
• Parties: UNITED STATES FIRE INS. CO. OF NEW YORK et al. v. ROTHWELL.
• Court: Texas Supreme Court

Page 759

60 S.W.2d 759

UNITED STATES FIRE INS. CO. OF NEW YORK et al. v. ROTHWELL.

No. 1425-6050.

Commission of Appeals of Texas, Section B.

May 31, 1933.

Error to Court of Civil Appeals of Ninth Supreme Judicial District.

Action by T. F. Rothwell against United States Fire Insurance Company of New York and another. Judgment for plaintiff was affirmed by the Court of Civil Appeals , and defendants bring error.

Reversed and rendered.

Thompson, Knight, Baker & Harris and Robert Lee Guthrie, all of Dallas, for plaintiffs in error.

Beeman Strong and A. D. Moore, both of Beaumont, for defendant in error.

SHORT, Presiding Judge.

This suit involves less than $500, and was brought by the defendant in error against the plaintiffs in error, the United States Fire Insurance Company of New York and the Franklin Fire Insurance Company of Philadelphia, and a judgment was rendered for the amount sued for upon three policies of insurance on account of a loss by fire of certain wearing apparel, bed linen, and towels. The aggregate amount of the three insurance policies was $25,000, and they were intended to cover loss by fire of all the personal property contained in the dwelling house of the defendant in error, located on a certain lot in the town of Beaumont. The particular articles destroyed by fire were not in the dwelling house at the time of their destruction, but had been removed to a washhouse on the premises a few feet away on the day before, and the following morning, about 4 o'clock, the washhouse was destroyed, including these particular articles. The value of the articles is not in dispute, and the liability of the plaintiffs in error is dependent upon the construction of the language of the policies. The trial court, trying the case without a jury, rendered a judgment for the value of the destroyed property, and the Court of Civil Appeals at Beaumont affirmed that judgment. 39 S.W.(2d) 115.

The case has reached the Supreme Court on account of the alleged conflicts between the opinion of the Court of Civil Appeals and that of the Supreme Court in the British America Assurance Co. v. Miller, 91 Tex. 414, 44 S. W. 60, 39 L. R. A. 545, 66 Am. St. Rep. 901, and that of the Commission of Appeals in Fireman's Insurance Co. v. Alonzo, 112 Tex. 283, 246 S. W. 82.

The first assignment of error and the two propositions presented under it by the plaintiffs in error present the sole question involved in this case:

"First Assignment of Error.

"The Honorable Court of Civil Appeals erred in holding that where personal property, insured `while contained in a particular dwelling and not elsewhere', was destroyed by fire while contained in a building other than that described in the policy of insurance, it would be covered by the policy of insurance.

"First Proposition.

"Where a policy of insurance specifically provides that personal property will be insured while contained in a particular dwelling and not elsewhere, if the property is removed from the dwelling described in the policy and while removed destroyed by fire, the personal property is not covered by the policy of insurance.

"Second Proposition.

"A policy which specifically provides that personal property would be insured while contained in a particular dwelling does not cover personal property removed from the dwelling described in the policy to another place of deposit."

The statement under the foregoing assignment and propositions present the facts as reflected by the record: "The case was tried below on an agreed statement of facts. It was agreed between the parties that personal property destroyed by fire was destroyed while contained in a building other than that described in the policies of insurance. The policies of insurance specifically provided that the personal property would be insured while contained in the dwelling described in the policies and not elsewhere. The property involved in this law suit was destroyed while temporarily removed from the dwelling of Rothwell, which was the building described in the policies of insurance, to an out house, or wash house, not in any way connected with the dwelling but on the assured's premises."

It is the contention of the plaintiffs in error that the language of the policies of insurance is so clear and definite that it is not the subject of construction. Upon the other hand, the contention of the defendant in error is presented by the following counter proposition: "When a fire insurance policy is issued to cover personal property such as wearing apparel, bed linens, table linens, etc., the very character of which property is such that the contracting parties must have known and contemplated that in its ordinary use said property would necessarily, and often, be out of the usual place of deposit, a loss caused by destruction of same by fire while temporarily removed from said usual place of deposit, (the reason for such removal being a use that is...