Jacaman v. Fidelity & Guaranty Insurance Underwriters, Inc.

422 S.W.2d 154, 10 Tex. Sup. Ct. J. 492, 1967 Tex. LEXIS 235

• Court: Texas Supreme Court
• Decided: June 28, 1967
• Docket: No. B-88
• Status: Published

Opinions

WALKER, Justice.

This is an action on two fire insurance policies, one for $10,000.00 and the other for $5,000.00, issued by respondents to M. S. Jacaman. Petitioner is the personal representative of the insured, who died after the suit was filed. Each policy by its terms covered the “contents” of La Popular Store at 415-417 Convent Avenue, Laredo, Texas, and stipulated that “unless otherwise provided, insurance on personal property shall cover only while in the described building.” About three months before the fire, La Popular was closed and all contents of the building described in the policies were moved to the Frontier Shop. The latter store, which was also owned and operated by the Jacaman family, was located some three or four blocks from La Popular.

There was a fire at the Frontier Shop on September 11, 1963, and the evidence shows that the loss amounted to about 70% of the value of the merchandise and fixtures located there. This suit was instituted when respondents denied liability on their policies. The trial court instructed a verdict for respondents, and petitioner appealed to the Court of Civil Appeals. It was her contention there, as in the trial court, that the change in location of the insured property was waived by respondents’ agent, R. E. Laurel. The Court of Civil Appeals concluded that there is no evidence to show that Laurel was the agent of respondents at the time of the alleged waiver, and the judgment of the trial court was accordingly affirmed. 410 S.W.2d 189. It is unnecessary for us to consider the agency question, because it is our opinion that petitioner failed to establish the amount of the loss for which respondents would be liable under her theory of the case.

At the time of the fire, the Frontier Shop contained: (1) the merchandise and fixtures moved there from La Popular; (2) merchandise subsequently moved there from the Frontier Shop Annex, another establishment which was operated by the Jacaman family for a short time; and (3) merchandise and fixtures originally purchased for and placed in the Frontier Shop. The Frontier Shop continued to operate as a retail store after La Popular was closed. Merchandise was sold there, and the stock was replenished by “a lot” of purchases. New merchandise that had been ordered for La Popular was delivered by the carrier directly to the Frontier Shop.

The total value of all merchandise located in the Frontier Shop at the time of the fire was $90,000.00, and the value of the furniture and fixtures was about $5,000.00. Petitioner established these facts and sought to recover the aggregate of the two figures less the salvage from the fire and also less the amounts paid under three other insurance policies covering the Frontier Shop. This computation showed a net loss of $31,862.50 for which petitioner has not been reimbursed. The value of the merchandise transferred from La Popular was approximately $26,000.00, but no attempt was made to show how much of this was on hand at the time of the fire.

About two months before the fire, Laurel learned that La Popular was closed and that the contents of the building had been moved to the Frontier Shop. He had the following conversation with petitioner at that time:

Q. And he told you at that time that Freddie had told him that you had closed La Popular?

A. He told me this, that he went first to the Popular and saw it was closed, so he went to Freddie and asked him and Freddie told him that we had to close.

Q. Was that the extent of his conversation with you about the La Popular Store ?

A. He also talked about the balance that was owing, and then I asked him about the policies on the contents.

Q. Of the Popular Store?

A. Of the Popular Store, that we had moved them and he said that does not affect anything as they are under your father’s name, as long .as they are under your father’s name.

It also appears that the two insurance policies were not cancelled and the unearned premiums were not refunded. Petitioner says that when respondents’ agent learned that the provisions of the policies had been breached, but nevertheless assured her that the coverage was not impaired and took no action to cancel the policies or return the unearned premiums which had already been paid, respondents waived the breach of the policies. In support of this contention, she cites United States Fidelity & Guaranty Co. v. Taylor, Tex.Civ.App., 11 S.W.2d 340 (wr.ref.); Girard Fire and Marine Ins. Co. v. Mallard, Tex.Civ.App., 13 S.W.2d 895 (wr.dis.); and Camden Fire Ins. Ass’n v. Bond, Tex.Civ.App., 202 S.W. 220 (no writ).

While the cited cases support the proposition urged by petitioner, they avail her nothing here. In each of them the suit involved the property described in the insurance policy, and it was held that the policy continued to cover such property after the same was moved to a different location. When viewed in the light most favorable to petitioner, the evidence in the present case indicates, at most, a willingness to insure the contents of La Popular after their removal to the Frontier Shop. There is nothing in the record to warrant the conclusion that Laurel agreed to extend the coverage to all merchandise and fixtures located in the Frontier Shop.

Even if petitioner is correct in her analysis of the evidence and the law applicable thereto, we have the insured merchandise and fixtures placed in a building with other similar property. The total loss resulting from damage to and destruction of the entire stock of merchandise and all the fixtures located in the building is shown, but petitioner has supplied no information that would enable the trier of fact to determine the extent of respondents’ liability. The merchandise from La Popular was placed on the main floor at the Frontier Shop, and all of the merchandise on that floor was totally destroyed. The record does not disclose, however, the amount of sales made from the Frontier Shop during the period between the closing of La Popular and the fire. None of the witnesses undertook to estimate the value of the La Popular merchandise and fixtures that were in the building when the fire occurred, and we have no facts from which such an estimate could be made. The loss sustained as a result of damage to the property insured by respondents is thus a matter of pure speculation. This was urged in the motion for instructed verdict, and in our opinion the trial court properly granted the same on that ground.

The judgment of the Court of Civil Appeals is affirmed.