*1 COMPANY, GUARANTY HOUSTON TITLE Appellant, Appellees. ux., B. FONTENOT et

Enel

No. 13186. Appeals Texas.

Court of Civil

Houston.

Oct. 1960. Filing 1960.

On of Remittitur Oct.

Rehearings Oct. Denied *2 Hudspeth

DeLange, Pitman, C. M. ap- Hudspeth, Mintz, Houston, Sam W. for pellant.

Fountain, Fox, Cox, Joyce Gaines Cox, Houston, Houston, Brantly Harris, counsel, appellees. WERLEIN, Justice. appellees,

This suit was Euel brought Fontenot, B. wife, against appellant, Guaranty Company, Houston Title on owner’s at- insurance recover torney’s expenses they al- fees leged they expend were in de- fending suit, a former boundary Collis Fontenot, appellant’s because breach its covenant in said to defend them the insured in such In a before suit. trial court, jury, judgment without a appellees ap- rendered favor of pellant $1,168.24. in the amount stipulated It was had ac- quired Hyde title to Lot 7 in Block 29 of City Park Main Addition Houston and Collis owned Lot 6 in said block. map recorded shows Lot 7 to abe SO 100 foot lot situated at the northeast corner block, of said and Lot 6 to be a foot lot situated at the northwest corner thereof. The west of Lot is SO length feet is a common east of Lot 6. Immediately following service of the original petition temporary restraining Fontenot, order restraining cyclone ground, lot on the lines constructing a Fontenots “discrepancies area Lot there were no true west along fence rep- survey boundaries a correct Reynolds to attorney they employed show.” The trial con court so found and Collises’ hearing them. At the resent *3 findings cluded. think conclu its and temporary injunction on for a motion Janu- The supported-by sions are first the evidence. 1954, their ary 4, filed the Collises discrepancy alleged asserted in Collis Fontenot petition original discrepancy was the the of 3 feet between by plaintiffs boundary the that the claimed boundary, true which is also the deed the boundary “as established on was the boundary, boundary agreed and the oral usage, ac- ground according long and by Barker, appellees’ predecessor D. in the ceptance same agreement, whether the and insured chain of In that case the lot title. in exact measurement to the conforms Thereafter, court agreed found that description Barker had and not.” block or Fountain, Collis in 1947 between that the employed the firm of their two lots was 3 feet east of the true Cox and Gaines. boundary, but held that the oral judg- The trial court found the final that binding was not because Fontenot, ment in entered Febru- Collis agreed boundary not marked on 20, ary 1956, from, appealed and not decreed court, thus, correctly land. The that held by that Mr. and nothing Mrs. Collis take boundary agreement binding an oral to be suit; their it also ordered them remove by physi must be executed of erection eaves, spout, any drain and struc- other by cal agreed monuments line or encroaching upon tures prop- the Fontenot marking by possession otherwise the line or erty. The adjudged court that Lot 7 owned Corp. use to line. Gulf Oil v. Marathon by the ground Fontenots had on the Co., 1941, 59, Oil 137 Tex. 152 711. S.W.2d full 50 100 foot dimensions called for orally Obviously discrepancy a between an plat official which it was sold and agreed boundary and the true which title was insured. is “discrepancy not a in area or boundaries show,” survey a correct would if the The court in the instant concluded case agreed boundary way is in no marked on that defend the or monumented. evidence The pleadings in Collis case case unless that Boyles, shows S. that a licensed state alleged on their a cause face of action en- J. surveyor, survey land made a of Lots tirely coverage excluded under the September 3, 1953, which was introduced policy. terms of the title insurance The by appellees. survey evidence The shows court further concluded no that there were true is “rights parties line located possession” 1BAoo within the aof foot east of the east wall of the Collis policy exclusion. part garage, ga and that no undisputed testimony The rage extends over such line. garage and its down the Collis the eaves of asserts, 7. spout protruded Appellant however, Lot over the appellant’s survey by Boyles that such en It contention made was not a com “discrepancies (1) plete survey constituted in that croachments failed to show that downspout a correct ga boundaries which sur in area and the eaves the Collis show,” (2) “rights parties policy Lot vey rage would encroached possession” question complete it was and hence not obli does not call for a survey survey only gated under the terms of the title but a correct refers discrepancies Appellees in area and to defend the Collis suit. assert boundaries survey a correct It that since there was no difference between which show. to encroachments foot called for in makes no reference dimensions view, overhanging It is there- their deed title and the eaves. our true ref., Co., ty Tex.Civ.App., 178 S.W.2d Boyles survey is a correct fore, that the Moritz, m.; Maryland Casualty the w. o. survey area boundaries protrusion Tex.Civ.App.1940, although fails show lot if Even writ ref. line. eaves across the of the Collis survey would complete correct or Supreme the Moritz In in which across eaves protrusion shown the unqualifiedly writ, Court refused adjacent to part boundary line following Court statement: made shown a not have garage, it still would strip 3 foot grounds fee to a claim to the “But the fact other length *4 extending damage against the whole those than stat- Moritz a correct against Since liability between Lots 6 and 7. policy; line ed the or latter such survey not shown damages would have others than Moritz for such appellant obligated immaterial; to de- discrepancy, pleaded if were the is the suit, under obligated plaintiffs as it fend the addition to or proceed- policy every or defend suit parties to in connection other right said pleaded any or to ing grounds, on claim other also any part land, grounds against coming or thereof. Moritz within policy. the terms of the Christian v. Appellant contends also Royal Co., 180, Minn. 240 N. Ins. 185 brought about survey have correct would 365.” W. resulted in dis inquiry which have an deciding In findings whether the covery by Collis the of the contention supported trial court are evi the the agreement been had entered oral dence, necessary it is determine whether to into, the not on although monumented petition alleged any Collises’ amended upon is based ground. Such contention grounds appellant recovery was# Moreover, speculation. we are of mere required defend, regardless to whether in the opinion that the “show” used word grounds it contained other which if stand con given be the strained cannot appellant ing alone would not be appellant without suggested by struction that, petition In to defend. their amended violating the settled of law rule alleged Collises for the first time that construed of insurance are terms of liberallyin American favor of the insured. “The Plaintiffs seek to Williams, Tex. Fidelity Casualty v.Co. boundary line remain where has it been 396, Civ.App.1930, 34 ref. error S.W.2d twenty years, established for over think such rule of construction should seeking the Defendants Fontenot are although the terms of be adhered change force line specified Board State policy are to take in so as several more feet of When Insurance Commissioners. land, part as well as of the Plaintiffs’ accepted voluntarily the policy wrote improvements which have been erected adopted prescribed language terms the established and inside for by the Board of Insurance Commissioners. * * * many years suit this brought and the claim Plaintiffs Appellant correctly states that upon the basis as established determining whether the cause of action in according long Fontenot v. was one which it was acceptance usage, agreement, defend, necessary required to it is to look conforms in whether same exact pleadings by Collis and not filed to the lot measurement and block adduced at the trial. proof United description or not. Fidelity Guaranty Co. v. States Baldwin “ * * * Co., 815; Tex.Com.App., 34 S.W.2d line Motor as set Employers petition Stone in this West Texas Casual- forth the boundary

351 strip accepted cuted 3 in favor always line a deed foot which has been Collises, adjoining effected since would have agreed to between the Corp. a conveyance land. v. Gulf ago. Oil owners until a weeks few Co., Tex. Marathon Oil ‡ n i{« n n n 711; S.W.2d Great Plains & Gas Co. Oil boundary line forth “The as set Co., Foundation Oil Tex. accepted and petition this been the has 452; Fuentes, Tex.Civ. S.W.2d Boothe v. adjoining agreed between the said App., 754; Korn Farmer S.W.2d (25) properties twentyrfive over for fuehrer, Tex.Civ.App., years con- in the and has been followed improvements struction of it is true that amended While properties.” respective (Emphasis said petition in the asserts certain Collis case supplied.) grounds recovery fall within the policy’s exceptions, bound it also asserts a temporary in- Upon hearing’ for ary dispute growing out of junction filing of-the and the by appellees’ predecessor made in title. The (cid:127) petition first apparent it became *5 agree pleading does not state whether such claiming time that were that the Collises oral, ment writing was in or or whether boundary 6 had been between Lots and 7 was or not marked was on changed by agreement an between them oral the ground. enough, It does allege how appellees’ predecessor and in title. ever, appellant put upon to have notice that agreement was was that the line the discrepancy might growing out be one and way garage half between Collises’ of an agree unrecorded written boundary garage which Lot Barker’s on was ment or growing one of an unmonu- out Collis that if his deed not cover testified did agreement mented oral which would not east, 3 garage feet from his he by be disclosed a survey. Having correct deed claiming it in addition to what put upon thus been notice, think it we court, present called in for. The upon appellant devolved to make an in boundary agree- found such that there was vestigation to determine whether suit land; ment it was not but marked on the which one it was to defend. appellees that had no constructive actual or thereof; prove notice that Collis failed to that the Appellant also contends waiver possession property any adverse in dis- it signed by the Fontenots relieved pute requisite periods provided for the the Collis suit. Such obligation to defend law; that true and location of the as follows: waiver reads as ground line was located on the inspection by you waive hereby “We established the Fontenots. accept your policy property and such rights parties in subject to the of the appellant Reynolds advised they possession and those under whom Mr. injunction hearing: temporary upon hold, possession are any such if now pleadings wherein he “Collis filed premises upon you have which the claim asserted policy, it issued such and take Block and Lot 6 in in Block inspect Lot 7 premises such ourselves Addition, had been Main Hyde Park possession obtain thereof from the an be changed altered and occupant.” present predecessor in Fontenot’s tween Collis appellant’s as Appellant was thus advised It contention that title.” being inspection appellees which made in the amended waived contention agreement, binding, downspout if would have revealed pleading. Such overhung approximately effect as if the Fon- Lot 7 the same would have inches Barker, overhanging protruded eaves which predecessor, D. had exe- tenot’s should be felt discussion oral some inches, also disclosed some give in order to Title Com- foot made boundary agreement covering the prepare pany opportunity an a de- speculative highly strip. We think it in said given fense suit and be inspection which author- conjectural whether ity proper to defend the same if such is result- appellees have was waived necessary boundary agree- under the terms of the discovery the oral ed in policy.” court, finder, was as fact ment. The trial as liberty reject such contention at Nearly replied month later judgment evidently entering did in to the letter Reynolds, of Mr. stating: opinion that appellees. are also of the protrusions given “We call attention such could at most issued subject pre- to any discrepancies, which would only easement conflicts or shortages removing from area vent servient estate or lines or any not amount encroachments certainly them. or They did overlapping of improvements possession the 3 foot correct survey would show. discrepancy strip constituting the bound- hanging it did not lant

mowed. Even if the waiver relieved 3 foot strip the ary Actually the policy under strip, eaves the defending the suit relieve to defend the suit taking the oral entire it care of were in from length boundary agreement. distance all liability it and possession involving to the over- of the com- keeping garage, appel- under the matter present work with ment in form *6 to do without ed “Our client they ^[*] so circumstances. will execute a non-waiver you its ^[*] acceptable present recognizes cost to your clients ^[*] suit, form and to us.” If n no- we will be you liability ^[*] desire us to under provid willing in this agree ^[*] mon boundary line. appellant recognized reply, In its Appellant next asserts that is no there the although it of was notified liability no appellant that evidence given was author- petition the and of contents of the ity to defend provided the Collis suit as boundary agreement between claim of the in policy the title or that it to refused appellees’ predecessors in and title. Collis defend such suit. ap- appellant offer to work with The of counsel, provided pellees’ a non-waiver Appellees ap- in effect concede that the acceptable agreement in form to it was pellant duty was under no to defend the executed, was not an offer to defend. The prior receipt cause action of to of the obligation clearly “to defend” was intended January letter of addressed to to that title company mean re would by Attorney Reynolds, stating part: in expense insureds duty lieve the and court, having counsel in and that such “ * * * attorney undersigned company responsibility would assume the Fontenot Mr. represented and burden of An the defense. merely offer injunction. Up- temporary hearing of help to was in effect a defend, refusal to hearing, filed amend- Collis on this especially in view of the statement that he asserted the pleadings wherein ed appellant recognized no liability in the * * * that claim matter under the circumstances. changed been altered an had between Fonte- agreement our that It is view the statement * * * predecessors in title not’s company recognized liability that no together “In view of this situation matter becomes in the the statement of apparent Company why that Title has reasons it was not liable consti interest in some this matter and it is tuted an breach of anticipatory the con- ney’s fees that amount further such and excused tract Pollack, grossly is excessive in un- view authority. Pollack tender of disputed 292; Amer- evidence the fair market Tex.Com.App.1932,46 S.W.2d Williams, value of the 3 foot strip of land involved Casualty Fidelity Co. ican only error ref. Tex.Civ.App., $300. appellant Moreover, it will be noted opinion We are of the that the counsel, appellees’ to work with in its offer sum of allowed, included in the fee $75 in the contained condition not attached a appears be charged to a retainer agree- namely policy, that a non-waiver Reynolds collected prior Mr. company acceptable to the ment form appellant the time was notified question The be furnished. lawsuit, is charge matter law not a defend, authority merely called required pay. should be agree- provide non-waiver did not for a We opinion are further of the that the re Casualty Fidelity ment. In American maining amount of the fee in the sum Williams, supra, in- liability Co. v. $900 excessive sum $300. surance an unconditional included disagree with appellant, however, that the obligation to defend the insured. Suit was fee should be reduced to It our $300. against the com- instituted insured. The view a reasonable fee would be $600. pany refused to defend the suit unless Southland Ins. Norton, Life Tex. sign agreement. insured non-waiver Com.App., 5 767; S.W.2d Tex.Civ.App., Upon sign refusal of the insured to 9 S.W.2d 752. We have arrived at that agreement, company take declined amount taking into account not only part in the defense suit. value 3 foot strip of land but also

court held non-waiver so-called the nature of litigation, the interests attempt company anwas stake, at the capacity and fitness of the performance obliga- avoid of a material attorneys required for the work, the serv upon it, tion which rested and that in- ices labor by them, rendered the amount justified refusing sign sured time preparation trial of *7 instrument, refusing and that in to defend and the benefit by appellees derived action company had breached its from litigation especially in preser contract. The court stated: vation of the integrity of their home and of a normal sized corner lot. International rule of law “It fundamental is a G. N. R. Clark, 1891, v.Co. Tex. that, re- party when one of contracts 631; S.W. Hatch, Life Texas Ins. pudiates refuses Tex.Civ.App., 802, ref., o. m. w. obligations, material bound be repudia- may accept party other days appellees within will If fifteen from required to not as final and is tion opinion filing this file a remittitur of obligations imposed regard further $375, of the judgment trial court will thereby, [citing him authorities] accordingly, be reformed and as reformed Upon company of the refusal affirmed; will otherwise the judgment be defend, assume was forced to Abbott court will trial be reversed of the attorneys responsibility employ cause remanded. him, represent and was entitled company expenses his recover On of Remittitur Filing necessarily incurred, together 6, 1960, October we indicated On judg- costs interest on of suit opinion appellees that if writing ment.” remittitur file a within fifteen $375 date, days Appellant finally complains judgment court of such reformed, be re- awarding erred trial court would as attor- $975 would-be.affirmed; otherwise formed re- would be court of the trial

judgment Appellees remanded. and the cause

versed remittitur of suggested $375. filed the date, judg- this

Accordingly, as of by de- the trial reformed

ment of court judg- from the the amount

ducting $375 and, appellees, as so

ment recovered

reformed, is affirmed. present of the costs

One-third appellees, against

appeal taxed will be appellant, Houston

two-thirds Guaranty Company.

Title rehearing may be filed

Motion for days fifteen this party within after

either

date. ASSOCIA

CAMDEN FIRE INSURANCE TION, Appellant, VERA,

Raymond Appellee. D.

No. 6973. Appeals Civil Texas.

Court

Amarillo.

Sept. 26, 1960.

Rehearing Denied Oct. Adkins, Fullingim Hankins,

Simpson, Amarillo, appellant. for Hunter, Fike, Dalhart, appellee. DENTON, Chief Justice. Vera, appellee,

Raymond brought D. suit appellant,. Camden Fire Insurance Association, Corporation Motor Insurance