Wyche v. Trinity Universal Ins. Co.

• Decision Date: 09 November 1946
• Docket Number: No. 5731.,5731.
• Citation: 198 S.W.2d 158
• Parties: WYCHE v. TRINITY UNIVERSAL INS. CO.
• Court: Texas Court of Appeals

198 S.W.2d 158

WYCHE v. TRINITY UNIVERSAL INS. CO.

No. 5731.

Court of Civil Appeals of Texas. Amarillo.

November 9, 1946.

Rehearing Denied December 9, 1946.

Appeal from District Court, Dallas County; W. L. Thornton, Judge.

Action by Paul Wyche, doing business as Wyche Investment Company, as mortgagee, against Trinity Universal Insurance Company, upon a policy of insurance issued by defendant to Fain D'Orsay, mortgagor, upon an automobile. From an adverse judgment, plaintiff appealed to Court of Civil Appeals of Fifth District at Dallas, and the case was transferred to Court of Civil Appeals at Amarillo by order of the Supreme Court.

Judgment affirmed.

Bonney, Paxton & Wade, of Dallas, for appellant.

James J. Sheerin, of Dallas, for appellee.

STOKES, Justice.

This suit was instituted by appellant, Paul Wyche, who was engaged in the loan and investment business under the trade name of Wyche Investment Company, against the appellee, Trinity Universal Insurance Company, upon a policy of insurance issued by the appellee to Fain D'Orsay upon an automobile. D'Orsay was indebted to appellant in the sum of $1,050 and the policy contained the usual loss payable clause in favor of appellant as his interest might appear. On December 28, 1943, D'Orsay was engaged in transporting four soldiers and a sailor from New Orleans, Louisiana to Gulfport, Mississippi. The insured automobile was being used for the purpose and D'Orsay was to receive $35 from his passengers as consideration for the service. Before the trip was completed D'Orsay, his passengers, and his automobile were involved in a collision which resulted in serious damage to the automobile and the suit was instituted to recover the damage under the terms of the policy. It was stipulated at the trial that the damage, after crediting upon the indebtedness of appellant the amount received for the salvage of the car, was $700. The policy contained a provision to the effect that it would not apply under any of the coverages therein while the automobile was being used as a public or livery conveyance unless such use was specifically declared and described in the policy and a premium charged therefor. The items insured by the policy were described therein as "W—Comprehensive (Loss of or damage to the automobile, except by collision, but including fire, theft, and windstorm)." For this item a charge was made of $12.50. "E—1. Collision or upset. Actual cash value less $50.00." For this item a charge of $28.75 was made, thus making the total premium paid for the policy $41.25. The policy further stipulated that the purposes for which the automobile was to be used were business and pleasure. Appellee denied liability upon the ground that at the time of the collision the car was being used as a public or livery conveyance in contravention of the terms of the policy.

The case was tried by the court without the intervention of a jury and resulted in a judgment denying appellant a recovery for any amount, to which he excepted and perfected an appeal to the Court of Civil Appeals of the Fifth District at Dallas. The case was transferred to this Court by order of the Supreme Court equalizing the dockets of the Courts of Civil Appeals.

Appellant presents and urges two assignments of error in which he contends, first, that the court erred in refusing to apply Articles 4930 and 4931, Revised Civil Statutes 1925, Vernon's Ann.Civ.St. arts. 4930, 4931, and, secondly, in refusing to enter judgment in his favor because of the uncontroverted testimony to the effect that appellee waived the provision of the policy excluding coverages while the insured automobile was being used as a public or livery conveyance.

Appellant makes no contention that he was entitled to recover under the strict terms of the policy. Indeed, it is evident that, under the provisions of the policy alone he could not recover because of its plain provision concerning the use of the automobile. No charge was made, and no premium was paid, for insurance upon the automobile while it was being used as a public or livery conveyance and all of the testimony showed it was being so used when the collision occurred. If such coverage had been included in the policy the comprehensive premium covering fire, theft, and windstorm would have been the same, but the premium for the insurance against collision while the automobile was being used as a public or livery conveyance would have been doubled, making the entire premium $70 instead of $41.25. Appellant contends, however, that inasmuch as the policy insured against fire, the provisions of Articles 4930 and 4931, R.C.S., Vernon's Ann. Civ.St.Arts. 4930, 4931, apply because he was a mortgagee and the loss was payable to him as his interest might appear. Article 4930 provides: "No breach or violation by the insured of any warranty, condition or provision of any fire insurance policy, contract of insurance, or application therefor, upon personal property, shall render void the policy or contract, or constitute a defense to a suit for loss thereon, unless such breach or violation contributed to bring...