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

• Decision Date: 30 June 1927
• Docket Number: (No. 548.)
• Parties: UNITED STATES FIRE INS. CO. OF NEW YORK v. FARRIS.
• Court: Texas Court of Appeals

297 S.W. 575

UNITED STATES FIRE INS. CO. OF NEW YORK v. FARRIS.

(No. 548.)

Court of Civil Appeals of Texas. Waco.

June 30, 1927.

Appeal from District Court, Hill County; Horton B. Porter, Judge.

Suit by C. F. Farris against the United States Fire Insurance Company of New York. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

E. G. Senter, of Dallas, for appellant.

Collins & Dupree, of Hillsboro, for appellee.

GALLAGHER, C. J.

Appellee, C. F. Farris, instituted this suit against appellant, United States Fire Insurance Company of New York, in the district court of Hill county to recover on a fire insurance policy issued to him by appellant covering a dwelling house, a barn, and certain household furniture. He alleged that the dwelling house, insured for $700 and the barn, insured for $300, were totally destroyed, and that the household furniture insured for $450 was partially destroyed. Appellant pleaded that the policy sued on provided that:

"This entire policy, unless otherwise provided by an agreement indorsed herein or added hereto, shall be void if the interest of the insured in the property 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."

Appellant further pleaded that appellee was not the sole and unconditional owner of the property insured, and that said buildings were not situated on ground owned by the insured in fee simple; that same constituted a breach of such provision in the policy; and that by reason thereof said policy never became a valid or binding obligation. Appellant tendered to appellee the entire premium received by it for the issuance of such policy. Appellee pleaded in reply to said defense that all the property covered by said policy was in his possession, and that he had an insurable interest therein; that the dwelling house was used and occupied by him and his wife as a home, and that the household furniture was used by them therein, and that the premises upon which said buildings were situated constituted his homestead. He also pleaded that appellant's agent, at and before the time he issued the policy sued on, knew the status of the title to the property covered thereby, and knew that said premises and the improvements thereon were used and occupied by him and his wife as a homestead.

The case was tried before the court on an agreed statement of facts. Said agreed statement of facts shows that the policy sued on was issued to appellee in his own name; that the same was issued without any written application; and that no representations with reference to title or possession were made in connection with the issuance thereof. Said statement further shows that all the property covered by said policy was situated on a tract of farming land consisting of 250 acres; that said land, as well as a part of the household furniture, were formerly the property of J. A. Lowe, deceased; that said Lowe devised all his property, real and personal, to his niece, Miss Mamie Davis, subject to the limitations and charges imposed by his will; that, according to the provisions of said will, said devisee was to have charge of his estate and control the same, but was to pay to her sister, Miss Mattie Davis, one-half of the net annual revenues arising therefrom so long as her said sister should live; that said will further provided that, in event of the death of said Miss Mamie Davis, the estate should pass to her said sister, but that, if either should die, leaving a child or children surviving, such child or children should succeed to the estate; that said will further declared that it was the purpose of the testator that his net estate should constitute a trust fund for the use and benefit of said two sisters, but that no land should be sold so long as either of them should live. Said agreed statement further shows that Miss Mattie Davis was living at the time of trial; that she was married, and resided in a distant state, and had never lived on said property since the death of the testator; and that she had never exercised any management or control over the same; that shortly after the death of said testator Miss Mamie Davis married appellee, C. F. Farris; that she and her husband moved onto said property, and have used and occupied the same as a home ever since; that a part of the household furniture destroyed was acquired and held under said will; and that a part thereof was acquired by appellee since his marriage. Said statement further shows that the dwelling house and barn were each a total loss, and that household furniture of the value of $372.25 was destroyed. Said statement further shows that said policy was issued without a written application, and without inquiry or representation about the title of the property covered thereby, but that the agent knew appellee and his wife personally, and knew they occupied the premises as a home. The policy sued on was introduced in evidence and contained the provision pleaded and relied on by appellant. The court rendered judgment against appellant in favor of appellee for the sum of $1,372.25, which judgment is here presented for review.

Opinion.

Appellant contends that the agreed statement of facts shows that appellee was not the sole and unconditional owner of the property destroyed, and that he did not own in fee simple the ground on which the buildings were situated, and that such showing precludes a recovery by him, and requires a reversal of the judgment. The insured is the sole owner of property covered by a policy of fire insurance when no other person has any interest therein, and he is the unconditional owner thereof when the quality of his estate therein is not limited or affected by any condition. Rochester German Ins. Co. v. Schmidt, 89 C. C. A. 333, 162 F. 447, 450, 451; Hartford Fire Ins. Co. v. Keating, 86 Md. 130, 38 A. 29, 31, 63 Am. St. Rep. 499. Appellee claimed no interest in any of the property devised to his wife by the will of said testator, except such as accrued to him by virtue of his relation to her and the use and occupancy of the premises as a homestead. Our statutes now give the wife the sole control and management of her separate property, and the management, control, and disposition of the rents and revenues thereof. R. S. arts. 4614, 4616 and 4623; Arnold v. Leonard, 114 Tex. 536, 544-547, 273 S. W. 799, 804, 805. The use and occupancy of the separate property of the wife as a...