*1
uninsured,
repair
remains of
would
here.
in the crash
aircraft
involved
TITLE GUARANTY COM-
SOUTHERN
Lewis,
Drug
v.
Tex.
Renfro
Co.
PANY,
Appellant,
Inc.,
argues
Appellant
(1950).
through various No. this However, made objection was level, thus, no and testimony at the trial Texas, Appeals of of Civil assignment presented is specific of error Dist.). (14th Houston Therefore, appellant’s point error here. 23, 1972. Feb. is number one overruled. Rehearing March Denied Appellant’s point contention in of error April Rehearing Denied is number two is that there insufficient evi- Second finding total support jury’s dence to In examination and dis-
loss. view of our adduced at the
cussion of the evidence us, presented say
and we cannot this weight
finding against great and so
preponderance so to be
manifestly King’s wrong unjust. and Re
Estate, Tex. appellant’s
(1951). Accordingly, point of
error number is overruled. In view two disposition
of our two error, trial court
is affirmed. that, although
We feel not material to opinion, comparison dam- of aircraft
ages and recovery comparable is more involving
ato loss vessels of the sea improvements
marine insurance law than to
on real estate automobiles. Vessels or aircraft,
ships being closely and con- both government
trolled in that are both
required reflecting logs to maintain current repairs,
all matters of involve operation
more risk in the use and thereof improvements
than on real and auto- estate
mobiles. The American rule reference
to vessels of the sea is referred as the rule”; is,
“fifty percent if a vessel
damaged repairs and the cost exceeds more than im- the value of the vessel sustained,
mediately prior
then the insured has suffered “construc-
tive total loss.” See Bradlie and Gibbons v. Co., Maryland 12 Pet. Insurance Appleman,
(U.S.),
(1838);
Insurance Law & §
Affirmed.
«07 Cohn, Cook, Schlanger, W. Cook Joel Houston, appellant. Houston, York, Botts, Larry Baker & F. appellees. TUNKS, Chief Justice. appellant, February Guaranty Company, Inc. Title Prendergast to appellees, Vincent issued wife, policy of Prendergast, a Leola tract of covering a acre title insurance just bought. had land the Prendergasts under July of when person another took to sell company refused to guaranty title another outstand because issue title Theresa ing one undivided 10% Prendergasts there Krug Matlage. against appellants on the upon filed suit case re trial of this policy. The first title the case withdrawal of sulted motion, and rendi jury, appellant. In Pren judgment tion Guaranty Com dergast v. Southern pany, (Tex.Civ.App.-Hous n.r.e.), ref’d Dist.) ton writ (14th this Court reversed that re judgment and We decline to discuss those further mat- manded the case for another trial. The ters. Such are overruled. trial, jury, second before a resulted in a principal question involved in this appellees. appeal This *3 appeal proper concerns the of measure judgment. from that latter damages by which to measure the Prender- gasts’ recovery policy. under the title The paid $10,233 Prendergasts The policy liability limits the of the to insurer question in in property 1964. That was the the loss monetary “actual assured” not of policy by of the amount title issued South- $10,233. to provides if exceed that there Guaranty ern July Title In Co. of 1965 is established an in outstanding interest Prendergasts the entered into a contract to property, “less than the whole of the then $25,000. for sell the to one Milner only liability company the of the be shall required In that Milner title contract a part liability such of the whole limited guaranty policy by to be another title issued above as shall the to the bear ratio whole company. company title discovered interest, liability the adverse claim or in outstanding the undivided interest 10% right may bear the established to whole Matlage Mrs. and declined to issue the property, to such ratio based on re- be quested policy of for that reason. Because spective values determinable as of the date inability Prendergasts of to furnish the the policy.” language of this was dis- Similar policy required title the sale to Milner the Lawyers in In- cussed and construed Title filed was not consummated. This suit was McKee, Corporation surance 354 S.W.2d by Prendergasts against the Title Southern (Tex.Civ.App.-Fort Worth recover, Guaranty Co. to under the terms quoted language If writ). of their loss guaranty policy, of their title of policy applicable the amount were here by partial of their occasioned failure Prendergasts’ be recovery would title. $10,233 sum which the same ratio bore outstanding as the value of the inter- special four 10% The court submitted est to the whole value of the bore response In to those jury. issues opinion left In the McKee case the some acres, jury issues the found: de- doubt as to whether the values be discovery July of of in establishing termined such ratios should outstanding Matlage, of had interest Mrs. policy be date of the at the values $25,000. prop- a market value of 2. Such outstanding es- date that the interest was of erty, July discovery after here, policy language tablished. The of the interest, outstanding such had market however, that doubt because eliminates $10,200. in- outstanding value of specifically it values are recites such proximate Matlage terest of was a Mrs. policy.” “determinable of the date this cause of the termination the Milner Prendergasts were dam- contract. language quoted The above aged $14,800 of Mil- by the termination policy establishing comput the formula ner contract. liability there is a ing the insurer’s where loss of title to less than the whole of judg- that verdict the court rendered applicable property is to the situation where $10,233, ment for the outstanding physically an title to a identifi provided by maximum the title segment property able of the Guaranty policy issued applicable where established. It Company. partial right prop to the whole outstanding Thus, an out erty where appellant’s points of is established. of the error Many easement, not limited to standing pipeline are argument in its much brief prop specific within the insured complaints referable to decided boundaries matters provision established, the erty, policy appeal this the former of this case. entitled they were plaintiffs contended applica- payment was proportionate represented by Title Abstract v. National ble. Shaver may There to Milner. profits in the sale Co., In (Tex.Sup.1962). suing for dam- one be a situation wherein case, where realty to sell contract of a for breach ownership prop- of the whole awas prof- for loss to recover may be entitled any physically and was not limited erty prop- of the resale contemplated its segment property, identifiable damages the erty. ap- But to recover payment provision is not proportionate special buyer must show plaintiff plicable. contemplation of within at the time to the contract parties title com title .this *4 Kyle, v. 294 Higginbotham was made. to the Prender- pany agreed first insure jdgmt. (Tex.Commn.App.1927, 531 S.W. loss”, against not to exceed gasts “actual Parker, 139 93 Naylor v. S.W. adopted); because of $10,233, by sustained them 1911, writ). (Tex.Civ.App.-Fort no Worth acquired also they and defect in the title parties that the evidence Here there is no proceeding agreed any suit or to defend any loss of contemplated to this contract The against callenging their title. them fact, it. In all resale profits from a proceed to Prendergasts have elected to effect testimony was plaintiffs’ against company to recover their the title intending to they bought proceeding has although loss no suit or contemplated it, for a build a home on not challenging their against filed them been resale. plaintiffs in title. Thus the are limited to actual loss shown this suit recover their Guaranty Furthermore, in by to resulted from the defect them have good convey to did not contract Company their loss dif title. Their actual was the Prendergasts. The title com- title to the paid for the they ference between what portion of the contract pany, land and what was worth the date sued, agreed to in- plaintiffs which these purchase title. with defective its re- against actual loss plaintiffs sure the Hesse, George v. 107 100 S.W. Tex. title. The sulting from of their the failure Martin, Frey (1906). See v. 469 S.W.2d breach con- plaintiffs’ not for of a suit is (Tex.Civ.App.-Dallas ref’d writ title, on a convey it is a suit good tract to by special r. e.). n. The issues submitted against actual contract to insure loss did the trial court not elicit answers of title. failure proper would establish the dam measure of by The plaintiffs. recoverable special issues and' the The court’s trial jury’s 1 and 2 listed above were answers any establish jury’s thereto did not answers answers related to the “benefit of the by damages recoverable measure of bargain” mea measure of Such plaintiffs herein. The applicable on fraud sure to suit based and answers to such issues error directed involving a transaction real estate. V.T. sub- court should have are sustained. The C.A., Tex.Bus. Ann. & Comm.Code Sec. to special inquiring mitted a issue applicable 27.01 It not to a suit (1968). question, at of the tract in market value damages involving title insurance. purchase, with its encumbered date Company American Title Insurance plaintiffs should title. The Byrd, (Tex.Sup.1964). any, deficiency, between been the if have plain- $10,233 and the which value theory upon The the trial which paid tiffs issues, special court submitted the to which gave as 3 jury the answers listed and court, charge, in its instructed trial above, Matlage owned un- Mrs. entirely Apparently jury that clear. question. Ap- divided the land in damages plaintiffs seek “The which
pellant point challeng- stated a has of error are those the breach of resulting from ing plaintiffs guarantee instruction. Unless the the defendants’ contract proved plaintiffs good as a matter of law that Mat- and indefeasible title. Mrs. lage interest, the instruction prior owned Those suffered holding was erroneous. herein that cause of this District wrong damages, sub- any, measure of and amount of if requires by plaintiffs paid. mitted the trial court suffered has not been versal this case. noted in the earlier rights recovery As exist still Plaintiffs’ opinion case, in this there was some recompense at least can only be made them outstanding evidence of such by a determination this case. final moot, Mrs. will Matlage. The case be remanded The case is not and we overrule anticipate trial. can another We defendants’ motion to dismiss.” (Empha- relating Matlage’s evidence sis Mrs. added) next trial. ownership will be the same at the would, therefore, purpose serve appellant contends that its max review here the rather voluminous imum under its relating ownership and make a hold- to such caused *5 undivided 10% ing as a to whether it was established as $1,023.30, interest should be of the 10%
matter of law. policy. the maximum under contention is overruled. As we have held The defendant in the trial court under- proportionate payment provision the the of that prove took at date this suit a after Damages policy applicable. are to Matlage’s filed the executor of Mrs. was computed be on the basis of the difference quitclaim estate of the executed deed paid property between was what grantors property in the as and what it was Even if it be worth. plaintiffs’ chain of title their suc- price was value purchase sumed that the the April cessors. That deed dated 1971. was title, perfect still the with on trial court excluded that undivid fact there was an plaintiffs’ objection. This is the ruling the that the ownership ed would not mean subject appel- points of of error stated 10% defect worth plaintiffs’ title with such was As has lant. Those are overruled. price. Oil above, purchase of Humble plain- the been held measure the the Kishi, (Tex. Refining Co. v. 291 S.W. provision that of the & damages tiffs’ under holding approved). Commn.App.1927, pursuant they to sue policy elected which pur- their loss of the date of was as submission of errors in the Because Na- In Shaver v. chase of the question of Co., supra, plain- tional Title Abstract re- case and the trial court reversed provision under the of a title tiff sued same manded. plaintiffs which these damage resulted sued. case During pipeline easement. Rehearing Motion for case litigation and
course of has filed a motion appellant pipeline Supreme reached the Court contends, among other it hearing which released. and the easement was abandoned sustaining erred Court things, position before company The title took evi- excluding ruling trial court’s precluded the that this Supreme Court Mat- from Mrs. deed quitclaim said, dence of the recovery. The court plaintiffs’ proof that such argued It lage’s estate. and 869: pages S.W.2d plain- mitigation admissible was
tiffs’ FIREMAN’S FUND INSURANCE COM al., Appellants, et PANY the discov- shows after The record plain- title the ery of the defect in their COMMERCIAL STANDARD INSURANCE on the defendant cure tiffs called al., Appellees. et COMPANY 13, 1965,the defendant defect. On October denying that plaintiffs a letter wrote to the 4470. No. duty regarding this “any it had further Appeals Texas, of Civil suit filed their
title.” The Eastland. case tried was November they theory plaintiffs on the Sept. breach of the entitled to Rehearing Denied Dee. guaranty. The de- defendant’s contract theory defended on the fendant recov-
plaintiffs were not entitled to such had been done
ery. not until that It was defendant, years after about seven
that the contract and almost six
the date of the
years request after made it that defect, execution of procured
cure the quitclaim deed which it offered to
prove. the defendant may well be that *6 opportunity to a
was entitled reasonable plain
cure defect in the title before the were entitled to their suit for
tiffs maintain is not before this given here the defendant because accept opportunity
such an declined duty” in Their
“any further the matter.
procurement quitclaim deed under law, case, as
the facts of this a matter any right
was not exercise reasonable
to cure the defect their alternative
duty pay breach their guaranty.
the contract of defendant op accept its refusal to the reasonable compelled defect has
portunity to cure plaintiffs to other relief seek plaintiffs, under contract. After the compulsion, sued for their dam have cannot defeat the defendant cure the effort to
claim a belated
defect.
Appellant’s over- rehearing motion
ruled.