London Assur. Corporation v. Martin , 286 S.W. 913 ( 1926 )

Plaintiff in error will be referred to as appellant, and defendant in error as appellee.

Appellee sued appellant upon two policies of insurance, insuring his household goods against loss by fire. A policy for $2,000, dated September 10, 1924, covered appellee's household goods then situated at 1312 Cottage street, in Brownwood. On November 1, 1924, appellee moved to a residence at 1315 Coggin avenue, in Brownwood. A rider or indorsement, dated November 1, 1924, attached to this policy reduced the rate from $1.01 to 95 cents, and stated:

"The property insured under this policy has been moved to 1315 Coggin avenue, Brownwood, Texas."

A policy for $1,000, dated December 23, 1924, covered the same property, and each policy contained this provision:

"This entire policy, unless otherwise provided by agreement indorsed hereon, or added hereto, shall be void if the hazard be increased by any means within the control or knowledge of the insured."

Appellant's defense was that appellee breached this provision by permitting a twofamily occupancy of the dwelling in which the insured property was located, thereby increasing the hazard of fire, and rendering void the policies.

The special answers of the jury found that the value of the insured property was $4,000; that the loss and damages caused by the fire was $2,562.50; and that the two-family occupancy of the building did not increase the hazard of fire. Judgment for $2,562.60, with interest, was rendered for appellee; from which the appeal is perfected.

Appellant contends the jury's finding, that the two-family occupancy of the dwelling did not increase the hazard of fire, is unsupported by any evidence and contrary to the undisputed evidence that such occupancy did increase the hazard of fire to the property insured, and that its request for an instructed verdict should have been granted. Whether the finding is supported by the evidence is immaterial, since it is undisputed that the same two-family occupancy complained of at the time of the fire existed on the date the policies were issued or became effective, and of which fact appellant and its agents who issued and transferred the policies had full and complete knowledge. The provision invoked by appellant relates to subsequent acts of the insured which might increase the hazard of fire to the property insured, and not to hazards known by the insurance company to exist at the time it issued or transferred the policies. That is, conceding for the sake of the question only that the twofamily occupancy increased the hazard as a matter of law, appellant issued and transferred the policies with full knowledge of that fact; and therefore the question has no reference to any subsequent act of the insured which might increase the hazard of fire to the property insured.

The $2.000 policy was transferred in December, 1924, although the rider or indorsement bears date of November 1, 1924, which is the date the two-family occupancy of the premises began. The readjustment of the rates and transfer of the policy to the Coggin avenue location became a new contract with the assured from the date of the actual transfer. The policy for $1,000 additional insurance was issued December 23, 1924. Shortly before this date and in December, 1924, two of appellant's agents went to the Coggin avenue place to ascertain if there would be any reduction of rate on the transfer of the $2,000 policy, and to inspect the household goods to ascertain if additional insurance would be written. Appellee pointed out to them the property belonging to himself and that of his cotenant, and told them of the joint occupancy. These facts are admitted by the agents, except they make some immaterial qualifications of appellee's testimony, one contending that he said he had two roomers or two boarders, and the other not remembering just what he did say. After this they transferred the $2,000 policy and issued the additional one for $1,000. So, at the time the policies were issued or transferred the premises were subject to the same two-family occupancy that existed on the date of the fire, January 24, 1924, and the increased hazard complained of did not arise subsequent to the time the insurance became effective.

It is not alleged that appellee fraudulently represented in any manner that the residence was not subject to the two-family occupancy, and if such allegation had been made, the undisputed facts just detailed would refute it. The fact that appellant may have been entitled to a larger premium under the two-family occupancy is not material and does not render the policy void; and appellee did no act, nor did he suffer any act to be done subsequent to the date the policies became in force at the Coggin avenue location which in any manner increased the hazard of fire to the insured property.

Under the view we take of the case other assignments urged become immaterial, or they are without merit, and the judgment of the trial court is affirmed.

Affirmed.