Eagle Star & British Dominions Ins. Co. of London v. Head (47 S.W.2d 625, 1932)

JACKSON, J.

The plaintiff, Jones W. Head, instituted seven separate suits in the district court of Hutchinson county, Tex., making a different corporate fire insurance company defendant in each suit. He alleged in his petition in each suit that the defendant therein had, for a valuable consideration, issued to the plaintiff the policy sued on.

In cause No. 1795, Jones W. Head v. The Eagle Star & British Dominions Ins. Co., Limited, of London, England, the plaintiff sought to recover $2,000 on a fire insurance policy, dated March 8, 1930, expiring one year after date, issued to him by the defendant covering direct loss and damage by fire on a two-story brick building located on lots 1 and 2 in block 44 in the city of Borger, Hutchinson county, Tex.

In cause No. 1797, Jones W. Head v. St. Paul Fire & Marine Insurance Co. of Minn., the plaintiff sought to recover $3,000 on a fire insurance policy covering the same period of time and the same building above alleged, issued to him by the defendant, against direct loss and damage by fire.

In cause No. 1801, Jones W. Head v. National Union Fire Insurance Company of Pittsburg, Pa., the plaintiff sought to recover $5,000 on a fire insurance policy dated March 7, 1930, expiring one year after date, issued to him by the defendant, covering loss and damage by fire on the same property.

In each of said petitions the plaintiff alleged that on or about the 20th day of May, 1930, fire damaged said building in excess of $13,000; that the value of said building was in excess of $20,000; that by the terms and conditions of each policy he was permitted to carry additional insurance on the building; that he furnished proof of loss to each of the defendants, as required, and he attaches to his petition in each case, and makes a part thereof, a copy of the insurance policy sued on.

. In cause No. 1796, Jones W. Head v. Republic Fire Insurance Company of America, Pittsburg, Pa., the plaintiff sued to recover $1,000 on a fire insurance policy dated March 8, 1930, and expiring one year after date, issued to him by the defendant', covering loss and damage by fire to the furniture, fixtures, equipment, supplies, and other personal property usual and incident to the hospital or clinic, located in said two-story brick building.

In cause No. 1799, Jones W. Head v. The Republic Insurance Company of Highland Park, Dallas county, Tex., the plaintiff sued to recover $2,500 on a- fire insurance policy dated April' 27, 1930, and expiring one year after date, issued to him by the defendant, covering direct loss and damage by fire upon the same fixtures, supplies, machinery, equipment, etc., located in said two-story brick building.

In cause No. 1800, J. W. Head v. United States Fire Insurance Company of New York, the plaintiff sought to recover $1,500 on a fire insurance policy dated March 26, 1930, expiring three years after date, issued to him by the defendant, covering direct loss and damage by fire on the same office furniture, fixtures, supplies, machinery, etc., contained in said two-story brick building.

The plaintiff, in his petition in each of the last three numbered suits, describes in detail the same furniture, fixtures, equipment, and supplies covered by each policy, and alleges that, by the fire of May 20, 1930, said furniture, equipment, etc., was damaged in excess of $7,000. That by the terms and conditions of each of the policies covering the contents of the building he was permitted to carry additional insurance. That he furnished proof of loss to each of the defendants, as required, and attaches to his petition in each cause, and makes a part thereof, a copy of the policy sued on.

In cause No. 1798, Jones W. Head v. St. Paul Eire & Marine Insurance Company of St. Paul, Minn., the plaintiff sued to recover $1,000 on a fire insurance policy dated' May 12, 1930, expiring one year after date, issued to him by the defendant covering direct loss or damage by fire to one X-ray machine and one diathermy while situated in said two-story brick building. He alleges that in the fire of May 20, 1930, said X-ray machine was damaged in excess of the sum of $1350, and that said machine was of the fair and reasonable value of said sum. That he gave notice of the loss, etc., and the defendant is justly indebted to him in the sum of $1,000. He attaches to his petition and makes a part thereof a copy of the policy sued on.

J. M. Collins was permitted to intervene in causes No'S. 1795, 1797, and 1801. The inter-vener alleged that on or about April 15, 1930, J ones W. Head made, executed, and delivered to intervener two notes aggregating the sum of $2,250, payable April 15, 1931, and May 28, 1931, respectively, and contemporaneously therewith executed a deed of trust on lots 1 and 2 in block 44 of the city of Borger and the improvements thereon to secure the payment of said notes and interest. That attached to the policies involved in causes Nos. 1795,1797, and 1801 was a loss payable clause in favor of intervener making all loss under the policies payable to him as his interest might appear. He asked for judgment against the defendants in said causes in accordance with the terms of the loss payable clause in said policies, and prayed for a judgment for his debt against Jones W. Head and a foreclosure of his deed of trust lien on lots 1 and 2 in block 44.

The Borger State Bank intervened, alleging that the plaintiff, Jones W. Head, was indebted to it in the sum of $1,250, with interest thereon, and had by an instrument in writing, for a valuable consideration, transferred and assigned to such intervener all of his right, title, interest, and estate in and to the policies involved in causes Nos. 1799 and 1800, and asked that the moneys recovered on said policies, to the extent of the intervener’s debt, be adjudged to it.

In cause No. 1795, Jones W. Head v. Eagle Star & British Dominions Insurance Company of London, England, the defendant, after its plea in abatement, answered by general demurrer, general denial, and set up a provision of its policy providing that: “This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance on the subject thereof, or if the interest of the insured in the property be not truly stated herein; or in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after loss. This entire policy, unless otherwise provided by agreement endorsed hereon added hereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy; or if the hazard be increased by any means within the control or knowledge of the insured; or if mechanics be employed in building, altering or repairing the within described premises for more than fifteen days at any one time; or if the interest of the insured in the property be other than unconditional and sole ownership; or if the subject of the insurance be a building on ground not owned by the insured in fee simple; or if any change other than by the death of an insured take place in the interest, title or possession of the subject of insurance (except change of occupants without increase of hazard) whether by legal process or judgment or by voluntary act of the insured, or otherwise.”

The defendant alleges that the insured willfully concealed the fact that he was engaged in a violent controversy with other persons at the time the insurance was issued, who were threatening to do him injury; that other parties were interested in the property; that after the issuance of the policy the insured "procured other insurance without the knowledge of the defendant; that the hazard was increased; that the interest of the insured was other than unconditional; that a change took place in the interest, title, and possession of the property.; that mechanics were employed in building, altering, and repairing the premises for moi;e than fifteen days immediately preceding the fire; that after the fire the insured presented a claim of loss largely in excess of the damages to the property, and thereby attempted willfully and fraudulently to collect insurance on the property not covered by the policy; that the former wife of plaintiff, Irene Head, is and was at the time of the issuance of the policy an owner of a one-half interest in the property insured; that the fire occurred under circumstances making the insured responsible therefor; that it was caused by his gross negligence; that the property was willfully burned with intent to commit fraud, and that each and all of the stipulations in the above-quoted provisions of the policy were breached and the policy forfeited thereby.

In cause No. 1797, Jones W. Head v. St. Paul Fire & Marine Insurance Company of Minnesota, and in cause No. 1801, Jones W. Head v. National Union Fire Insurance Company of Pittsburg, Pa., the defendant in each suit answered, setting up the same defenses urged by the defendant in cause No. 1795.

In cause No. 1796, Jones W. Head v. The Republic Fire Insurance Company of America, in addition to the matters urged as a defense by each of the defendants in causes Nos. 1795, 1797, and 1801, the defendant pleaded the provision of its policy limiting its liability to not exceeding three-fourths of the actual cash value of the property insured in the policy, and that, in any event, the liability of the defendant should be prorated with any other policy or policies that had been issued to the plaintiff. It also urged the provision of its policy stipulating, in effect, that, in the event of a fire, the insured should protect the property from further damage, separate the damaged and undamaged property, put it in the 'best possible order, make a. complete inventory thereof, and state the quantity and cost of each article and the amount claimed thereon, and that the insured wholly failed to comply with this provision of the policy, alleging the particulars in which this stipulation was breached.

In cause No, 1799, Jones W. Head v. Republic Insurance Company of Highland Park, in addition to the defensive matters set out above, the defendant in this cause denied liability to the intervener, the Borger State Bank, and urged all the defenses against in-tervener that were pleaded against the plaintiff, Jones W. Head.

In cause No. 1800, Jones W. Head v. United States Fire Insurance Company of New York, the defendant’s answer contains the same defenses urged by the defendant in cause No. 1799.

In cause No. 1798, Jones W. Head v. St. Paul Fire & Marine Insurance Company of Minneapolis, the defendant, in addition to the defenses alleged in cause No. 1795, pleaded the provision of its policy to the effect that the insured should protect the property. in case of fire from further damage, separate the damaged from the undamaged, make a complete inventory, etc.

At the time the cases were reached for trial on the pleadings of the plaintiff, the in-terveners, and the defendants, as hereinbe-fore indicated, the plaintiff moved the court to consolidate all the cases. The court granted this motion, entered his order consolidating the cases, and proceeded as if there were but one case. None of the parties were required to replead, and the case was tried on the seven petitions of the plaintiff, the two petitions of the interveners, and the separate answers of each defendant in each cause.

In response to special issues submitted by the court, the jury found, in substance, that it would cost $15,245.83 to repair and replace the building burned on May 20, 1930; thst on the same date the reasonable cash market value of the personal property contained in the two-story brick building, exclusive of the X-ray and diathermy, just prior to .the fire was the sum of $9,229.17, and that subsequent to the fire the value thereof was $2,-483.33; that the reasonable cash market value of the X-ray and diathermy prior to the fire was $1,308.33 and their value just after the fire was $130; that the defendants, 'at the time of the issuance of their respective policies, knew that J. W. Head was not the owner of the mineral rights under lots 1 and 2 in block 44; that the defendant St. Paul Eire & Marine Insurance Company consented to the writing of its policy for the sum of $1,000, covering the X-ray and diathermy while it was situated in the two-story brick ■building; that the plaintiff is indebted to intervener Collins in the principal sum of $2,-250, with interest thereon from December 1, 1930, and that such indebtedness was secured by deed of trust lien; that the amount of concurrent insurance permitted by the defendant United States Eire Insurance Company was $5,000; that the value of the building just before the fire was $19,000, an