Eureka Security Fire & Marine Ins. Co. v. De Ross

40 S.W.2d 924, 1931 Tex. App. LEXIS 1241

• Court: Court of Appeals of Texas
• Decided: April 22, 1931
• Docket: No. 8598.
• Status: Published

Opinions

Appellee sued appellant in the county court to recover on a certain fire insurance policy issued to her by appellant on a certain residence, for the sum of $1,000, alleging that the insured property was totally destroyed by fire during the term of that policy, and that appellant was therefore liable to her for the full amount of the policy, with interest at the rate of 6 per cent. from the date of the fire.

The defendant answered (a) that the policy had been canceled at the time of the loss; (b) that Mrs. Margaret De Ross was not the sole and unconditional owner at the time of the fire; and (c) that the policy was void because the building was vacant and unoccupied for a period of ten days or more, in violation of the vacancy clause in said policy.

The case was tried to a jury upon two issues only. (1) Whether or not the fire occurred during the term of the policy, which was answered in the affirmative; (2) whether or not the insurance policy was canceled prior to the fire, which was answered in the negative.

These were issues of fact to be answered, and the jury answered both in favor of the appellee. The case involves no intricate issues of law.

The facts found by the jury clearly establish that the fire originated during the existence of the policy and was a total loss. It is true that Margaret De Ross was not the sole and unconditional owner; still she was handling the property for the true owner as a tenant in common for and with the other owners, having an insurable interest therein, possessing all the rights of the sole owners for whom she was acting.

The evidence showed that the property was bought by Charles Stafford, as a home, on April 30, 1903, and occupied by him and his wife, Betty Stafford, until the year 1913, when Charles Stafford died and left his widow and seven children. Mrs. Margaret De Ross, a widow, was one of the seven children.

Mrs. Stafford testified: "As to why it was insured in her name, she came to live with me to take care of the home property. She had an interest in it. She was one of the seven children and I was not able to do anything, she came to take care of me, and I turned the property over to her." She further testified that in April, 1923, the insurance agent, Ramsey, came out to their home where they were living, inspected the property, and insured it in the name of her daughter, Mrs. De Ross, for three years, and that Mrs. De Ross had always looked after this property and had collected the rents, paid the insurance, and taken care of her.

The court submitted two issues to the jury, which were the only ones pleaded by the defendant, to wit:

"Number One — Did the fire occur prior to noon March 31st, 1928?

"Number Two — Had the policy of insurance been cancelled prior to said fire?"

To question No. 1 the jury answered "Yes," and to question No. 2 the jury answered "No."

Upon these issues and findings of the jury the court gave judgment for the plaintiff for $1,000, with legal interest from the 9th day of July, 1928, being the date the proof of loss was received by the defendant.

Where property is owned and is a homestead, the surviving widow, on the death of her husband, although she owns only an undivided interest in the property, has an insurable interest in it. Hoyle v. Republic Ins. Co. (Tex.Com.App.) 14 S.W.2d 816; East Texas Insurance Co. v. Crawford (Tex.Sup.) 16 S.W. 1068; Rolater v. Rolater (Tex.Civ.App.) 198 S.W. 391.

A widowed daughter living with her mother is entitled to a homestead and has an insurable interest. Childers v. Henderson, 76 Tex. 664,13 S.W. 481.

A homestead is not subject to partition. Hall v. Fields, 81 Tex. 562,17 S.W. 82.

Possession of one tenant in common is in right of all the other owners. Phillipson v. Flynn, 83 Tex. 583, 19 S.W. 136.

The survivor is entitled to the use of the home. Adair v. Hare,73 Tex. 275, 11 S.W. 320.

Mr. Ramsey was the agent of the insurance company, and from the statement of facts it appears that policy No. D-75229 insured the property for $1,000 from March 31, 1926, to March 31, 1927, the premium being $15.30.

By policy No. D-76117, dated March 19, 1927, the property is insured for $1,000 from March 31, 1927, to March 31, 1928, and the premium charged was $18. The company undertook to cancel this policy without notice. On March 8, 1927, A. M. Ramsey was collecting the rent and insuring the property, and on that date he collected $33.30 for insurance on this property, as shown by his letter to Mrs. De Ross in which she was demanding her policy; thus we see that the said Ramsey in 1926 for the same policy charged $15.30 and in 1927 he charged $18, and still he collected from Mrs. De Ross on March 8, 1927, the sum of $33.30. He had received for the company $15.30, another year's insurance, and it is not strange, under these circumstances. that he refused to deliver the policy to A. E. Lowe and that the company failed and refused to place him on the stand on the trial of this case, as he would have been compelled to account for $33.30 instead of $18 stated to be the premium in the policy of insurance dated March 19, 1927. The proof of loss was sent to Dallas to the general agent and received by him July 9, 1928.

The facts sustain the findings of the jury and the judgment of the court. The judgment is affirmed.