Mecca Fire Ins. Co. (Mut.) of Waco v. First State Bank of Hamlin

135 S.W. 1083 | Tex. App. | 1911

The Mecca Fire Insurance Company (Mutual) of Waco, Tex., has prosecuted this appeal from a judgment recovered against it by the First State Bank of Hamlin for damages by fire to an iron safe. At the time of the fire, appellee held a fire insurance policy issued by appellant describing the property insured as appellee's "bank furniture and fixtures, adding machine and books." It is insisted that the safe was neither furniture nor fixtures, and therefore was not covered by the policy. The trial court found that the safe "was not attached to the building by bolts or screws, irons, or nails, but was a necessary piece of furniture to carry on the business of the bank." [1] Unless the safe was in some manner attached to the building, it could not be termed a "fixture." See decisions cited in notes 19 Cyc. 1035; 3 Words and Phrases, 2832. [2] But as it was situated in the building as any other article of furniture and was necessary to a proper conduct of appellee's business, we think it was included in the language "bank furniture," especially under the rule that, if it be doubtful what goods are covered by the policy, the doubt will be solved in favor of the insured. 2 May on Ins. § 420; Brody v. Chittenden, 106 Iowa 524, 76 N.W. 1009; Fore v. Hibbard, 63 Ala. 410,412; Curtis v. Martz, 14 Mich. 506, 512; Skowhegan Bank v. Farrar,46 Me. 293.

In appellee's original petition it was alleged that articles covered by the policy, other than the safe, were destroyed by fire, that all the property destroyed was of the value of $2,500, and a recovery was sought for $1.000, which was the full amount of the policy. After the suit was instituted and after appellant filed an answer thereto, the parties settled the claim for damages based upon the destruction of all property except the safe, but appellant declined to pay any sum for damages claimed on the safe upon the contention that it was not covered by the policy. After this settlement, appellee filed its first amended original petition, in which a recovery was sought for damages to the safe only. The amount of damages to the safe was alleged to be $750, and judgment was sought for three-fourths of that amount Appellant then filed a plea to the jurisdiction of the court, alleging that the damage done to the safe by the fire did not exceed $555.75; that, if the safe was covered by the policy, then under the terms of the policy appellant's liability was three-fourths only of the loss; and that the allegation in the amended petition of $750 as the damages to the safe was not made in good faith, but for the sole purpose of conferring jurisdiction upon the trial court.

The trial court found that the damage to the safe was $555.75 and rendered judgment in appellee's favor for $416.81, which was three-fourths of the damage. The trial judge further found that the allegation of $750 as the amount of damage to the safe was made for no other purpose except to confer jurisdiction upon that court; and appellant insists that under this finding the trial court was without jurisdiction to determine the merits. This contention is based upon the theory that, the amended petition having taken the place of the original petition, the allegations contained in the original petition should not be considered in determining the question of jurisdiction. The precise question was before our Supreme Court in the case of Nashville, C. St. L. Ry. Co. v. Grayson Co. Nat. Bank, 100 Tex. 17, 93 S.W. 431, and it was there held that under such circumstances the amount claim-in the original petition will be considered the amount in controversy in determining whether or not the trial court had jurisdiction to adjudicate the issues. See, also, Jackson v. Corley, 30 Tex. Civ. App. 417,70 S.W. 570. It seems that a different rule obtains when the amount claimed is reduced to a sum below the jurisdiction of the court by rulings on demurrers addressed to the petition. W. U. Tel. Co. v. Arnold, 97 Tex. 365, 77 S.W. 249, 79 S.W. 8.

In the original petition the "Mecca Fire Insurance Company," instead of the "Mecca Fire Insurance Company (Mutual) of Waco, Texas," the correct name of the insurer, was alleged to be the defendant against whom a recovery was sought. A citation issued upon this petition was served upon appellant, who filed an answer to the merits of the petition. The case was then continued to a subsequent term of the court, when appellee filed its first amended original petition referred to above, in which the name of the defendant was alleged to be the "Mecca Fire Insurance Company (Mutual) of Waco, Texas," and no citation was issued thereon. The fire occurred September 30, 1907. The original petition was filed February 10, 1908, and the amended petition was filed January 8, 1909. The contention is made that prior to the time the amended petition was filed appellant was not legally in court, because it had not been sued by its proper corporate name; that the filing of the amended petition was the beginning of the suit against it; and that the court erred in refusing to give effect to the clause contained in the policy reading: "No suit or action on this policy, for the recovery of any claim shall be sustainable in any court of law or equity, * * * unless commenced within twelve months after the fire." The decision of our Supreme Court in Southern Pacific Co. v. Block, 84 Tex. 21, 19 S.W. 300, is relied on to support the contention now under discussion. The judgment from which the appeal was prosecuted in that case was by default against the Southern Pacific Company upon an amended petition alleging a cause of action against that company and upon which no citation was issued or served. The original petition was filed against the Southern Pacific Railway Company, and, although service issued on that petition was served upon the Southern Pacific Company, that company filed no answer to it. Upon that showing our Supreme Court held, in effect, that service of citation to answer the original petition was insufficient to support the judgment rendered. A material distinction is recognized by the authorities between that case and one in which a corporation appears and answers the merits of a petition intended to be against it, but incorrectly designating it by name, and which asserts a cause of action otherwise sufficient as against the corporation intended to be sued. Under such circumstances, the corporation so appearing, and, without suggesting the misnomer, answering the merits of the petition, will be held to have waived the mistake of name, and the suit will be deemed to have been pending against the corporation so answering from and after the date of such appearance. McCord-Collins Co. v. Pritchard,37 Tex. Civ. App. 418, 84 S.W. 388 (writ of error denied by Supreme Court); Southern Pacific Ry. v. Graham, 12 Tex. Civ. App. 565, 34 S.W. 135.

As the case was continued to a subsequent term of court after appellant had filed an answer to the merits of the original petition, the assignment of error complaining of the action of the court in overruling its motion to quash citation is without merit Sayles' Civ.St. 1897, arts. 1242, 1243.

We have found no error in the record, and the judgment is affirmed.