Warren v. Springfield Fire & Marine Ins. Co.

• Decision Date: 29 April 1896
• Citation: 35 S.W. 810
• Parties: WARREN et al. v. SPRINGFIELD FIRE & MARINE INS. CO.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

35 S.W. 810

WARREN et al. v. SPRINGFIELD FIRE & MARINE INS. CO.¹

Court of Civil Appeals of Texas.

April 29, 1896.

Appeal from district court, Dallas county; Edward Gray, Judge.

Action by Mrs. M. A. Warren and another against the Springfield Fire & Marine Insurance Company on a fire insurance policy, in which Mrs. Forest L. Williams intervened. From a judgment in favor of defendant, plaintiff and intervener appeal. Reversed and rendered as to plaintiff. Affirmed as to intervener.

Field, Brown & Camp, for appellants. Morgan & Thompson, for appellee.

NEILL, J.

This suit was brought by the appellant, Mrs. M. A. Warren, against the appellee, on the insurance policy described in the agreement hereinafter copied. Mrs. Forest L. Williams intervened, admitting the right of the plaintiff to recover to the extent of the indebtedness of the former to the latter, asking judgment on the policy for the residuum. The case was tried on the agreement set out below and judgment rendered in favor of the insurance company, from which we have this appeal.

The following is the agreement: "It is agreed by and between M. A. Warren and J. F. Warren, plaintiffs herein, and Mrs. W. J. Williams, intervener herein, and the Springfield Fire & Marine Insurance Company, defendant herein, that the following facts are admitted in this cause; that upon these facts said suit shall be tried, and judgment rendered thereon, provided that either party may introduce additional facts not inconsistent herewith: It is agreed: First. That on July 1, 1890, the intervener herein, Mrs. W. J. Williams, who was then a feme sole, named Miss Forest L. Meek, purchased the land upon which the insured building was situated from the Rapid Transit Land Company by general warranty deed, duly recorded in Vol. ___ page ___, Deed Records Dallas Co., paying therefor $300.00 cash, and executed a note for the sum of $2,700.00, which said note is now owned by said Mrs. M. A. Warren, plaintiff. Second. That thereafter, on, to wit, the 26th day of November, A. D. 1890, Miss Forest L. Meek was intermarried with one W. J. Williams, to whom the insurance policy hereinafter described was issued. Third. That after said marriage the said W. J. Williams and his wife erected upon said lot so purchased the house insured as their homestead, and that they continued to occupy said house as their homestead until its destruction by fire. Fourth. That on the 23d day of April, A. D. 1892, W. J. Williams, the husband of Forest L. Meek, procured to be issued by the Springfield Fire & Marine Insurance Company of Springfield, Massachusetts, its policy of insurance No. 3,389, for the sum of $1,000.00, which, in so far as is material to this suit, is as follows, viz.: That said insurance company, in consideration of $20.00, `does insure W. J. Williams against all direct loss or damage by fire to the amount of $1,000.00 on his one-story, frame, shingle-roof dwelling house located on south side of Grand avenue, on lots one and two, block one, Edgewood addition to Dallas'; said policy beginning on the 23d day of April, A. D. 1892, at noon, and running for a period of three years, expiring April 23, A. D. 1895, at noon. That said policy provides: `Any omission to make known every fact material to the risk shall make this policy null and void; or if the interest of the insured in the property be any other than entire, unconditional, and sole ownership of the property, for the use and the benefit of the insured persons sustaining a loss by fire, shall forthwith give immediate notice in writing to this company, and within sixty days after the fire render a particular account of said loss, signed and sworn to by them, stating what insurance there was on the property, for what purpose and by whom the building insured was occupied; and the loss shall not be payable until 60 days after proofs of the same as required by this company have been made by the assured and received by this company, at its office in Chicago; and if this policy is made payable in the case of loss, to a third party, or held as collateral security, proofs of loss shall be made by the party originally insured. This policy is made and accepted upon the above expressed conditions.' It is further agreed that there was attached to said policy on the 21st day of September, A. D. 1893, at the request of said W. J. Williams, the following slip: `Any loss that may be ascertained or proven to be due W. J. Williams, the assured, under this policy, shall be made payable to Mrs. M. A. Warren, as her interest may appear. Attached to policy No. 3,389 of the Springfield Fire & Marine Insurance Company, this September 21st, 1893.' Fifth. At the time said insurance policy was applied for and issued, the insurance company was not advised that said property was the property of Mrs. W. J. Williams, and had no knowledge that said property was the separate estate of Mrs. W. J. Williams. Sixth. That on the 20th day of June, A. D. 1894, at the hour of 2 o'clock a. m., the said house described in said policy was totally destroyed by fire. Seventh. That thereafter, on or about the 26th day of July, A. D. 1894, Mrs. M. A. Warren, joined by her husband, J. F. Warren, and Mrs. W. J. Williams, née Forest L. Meek, made and swore to a proof of loss, and mailed the same to the defendant herein at its Chicago office. The same was duly received by the defendant. Eighth. That on or about August 1, A. D. 1894, the defendant objected to said proof of loss, because the same was not made out or signed and sworn to by the insured, W. J. Williams, and declined to receive the same as satisfactory proof under said policy. Ninth. That no additional proof of loss was furnished under said policy. Tenth. That the day previous to the fire the said W. J. Williams, the assured, left the city of Dallas, and has abandoned his wife, and his whereabouts is unknown. Eleventh. That there was on said building at the time of said fire insurance to the amount of $2,650.00. Twelfth. That the interest of Mrs. M. A. Warren in said insurance at this date is $2,603.75. It is agreed that the entire original policy may be considered in evidence in this cause, and the same is hereto attached, marked `Exhibit A,' and made a part hereof. Thirteenth. It is agreed that the value of the insured property destroyed by fire was $3,064.33." This agreement was signed by counsel for all parties.

Under the agreed facts, the first question presented is: Does the fact that the building was situated on land which was the separate property of the wife of the insured...