128 S.W. 1163 | Tex. App. | 1910
On December 5, 1907, appellees were engaged in the livery business at Nos. 114 and 116 West Elm Street, Gainesville, Texas, and on that day procured from appellant a policy of insurance on their vehicles, harness, lap-robes, feed, etc., for the aggregate sum of $1500. On February 8, 1908, they bought out the business, together with the stock of vehicles, horses, harness and feed, of J. R. Hunnicutt, situated on California Street in the same city, and moved their property on Elm Street to the latter place. A fire occurred March 21, 1908, resulting in the destruction of all the property. Upon the refusal of the company to pay the loss, this suit was instituted. Judgment was rendered for appellees in the court below, for the sum of $1245, from which the company appeals.
The first group of assigned errors is based upon the proposition *222
that the policy sued on had been forfeited because appellees had procured additional insurance upon the same property, without the consent of the appellant. The policy issued to appellees contains a stipulation providing that the entire policy shall be void, unless otherwise provided by agreement endorsed thereon, or entered therein, if the insured now has, or shall hereafter make or procure any other contract of insurance, whether valid or not, on property covered in whole, or in part by that policy. The record shows that at the time the appellees purchased the Hunnicutt stock it was covered by five policies of insurance issued by different companies, aggregating $2800, all of which were transferred to the appellees and were in force at the time of the fire. The proposition postulates the commingling of the two stocks in such a manner as to destroy the separate identity of each, and make them one. It is assumed that in this way, the Elm Street property was brought within the cover of the policies issued upon the Hunnicutt stock. It is not necessary for us to here pass upon the question raised, inasmuch as the facts do not justify the assumption. It has been held that where two different stocks of merchandise were covered by separate policies of insurance and were subsequently commingled in the same building, becoming parts of the same stock, that would be procuring additional insurance within the meaning of the policy. Washington Ins. Co. v. Hayes,
In view of what we have said, it becomes unnecessary to discuss the remaining assignments of error. The judgment of the District Court is accordingly affirmed.
Affirmed.
Writ of error refused.