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
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, 17 Ohio St. 432, 93 Am. Dec., 628; Walton v. Insurance Co., 2 Rob. (La.) 563; London Assurance Corp. v. Saxton, 55 Ill. App. 664; 2 Cooley's Briefs on Law of Ins., 1847. The New York courts, however, do not concur fully in that holding, as will be seen by the authorities cited by Mr. Cooley. A majority of this court are not inclined to apply the rule in this case, even if the facts justified the conclusion that the two stocks were so mingled. Forfeitures are not favored in law, and will not be given effect unless the facts upon which they depend bring the case clearly within the terms of the provisions of the policy relied upon to defeat a recovery. In order that other insurance shall constitute additional insurance, within the meaning of a policy, the property covered by both policies must be the same, and the burden of proving these facts is upon the insurance company. Clark v. Insurance Co., 75 Mass. (9 Gray) 148; Phoenix Ins. Co. v. Gray, 167 Ga. 110, 13 S.E. 948; 2 Cooley's Briefs on Law of Ins., 1845, and authorities there cited. To make the proposition relied upon by the appellant in this case applicable, it is essential that the evidence should show that the Elm Street stock owned by appellees at the time of their purchase from Hunnicutt, was commingled with the Hunnicutt stock in such a manner as to bring it within the provisions and cover of the Hunnicutt policies. There was no written transfer of the policy sued upon when the property on Elm Street was moved to California Street, and the consent relied upon for the removal was the evidence of the verbal permission given by the agent. The testimony does not show that the California Street stable consisted of only one building, and that the Elm Street property was moved into it and mingled with the Hunnicutt stock in such a way as to make the two, one. On the contrary, the policies issued to Hunnicutt show that what is termed the California Street stable consisted of different apartments and different numbers. In
one policy, it is described as Nos. 310, 312 and 314 East California Street; in another, as 308 East California Street; in another, as 306 and 308 California Street. In one, it is described as a two-story brick, metal or composition roof building, and a one-story frame, metal roof attached. We do not think we can say, from the record in this case, that the goods from the Elm Street stable were so mixed with those of the California Street stable as to become one entire stock and lose their separate identity. It appears from the evidence, that this suit is to recover for the loss of the Elm Street property alone, and the proof indicates that that property was susceptible of separate identification.
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.