Westchester Fire Ins. Co. of New York v. Looney.

WALTHALL, J. Appellee", J. W. Looney, brought this suit against appellant, West-chester Fire Insurance Company of New York, to recover on a fire insurance policy. The policy provides insurance for specific sums on specified items as follows: 81,000 on dwelling, 8500 on furniture and wearing apparel, 8500 on barn, and 8500 on contents of barn. Appellee had disposed of the dwell *1117 ing bouse and bam, and bad consumed tbe feed and contents of tbe barn, when a fire occurred wbicb completely burned up tbe dwelling bouse and barn and all tbe furniture and wearing apparel insured. Appellee sued for tbe four items covered by tbe policy, but later dismissed as to all items except tbe $500 on tbe furniture and wearing apparel. The insurance company pleaded that at the time tbe fire occurred, destroying tbe dwelling house, a change of ownership of tbe dwelling bad taken place, and tbe policy of insurance bad been canceled by tbe consent or under tbe direction of appellee. Tbe company also pleaded tbe following provision in tbe policy: This entire policy, unless otherwise provided by agreement indorsed hereon, shall he void if any change, other than by death of an insured, takes place in the interest, title, or possession of the subject-matter insured (except change of occupants without increase of hazard), whether by legal process or judgment, or by voluntary act of the insured, or otherwise, if the interest of the insured be other than an unconditional and sole ownership. While appellee bad sold tbe dwelling and, barn, he was still, in possession when tbe fire occurred. His vendee, for bis own interest, had reinsured tbe dwelling. Tbe court submitted tbe case to tbe jury on two special issues: First Did plaintiff, prior to the time of the fire mentioned, authorize Clyde F. Elkins [appellant’s agent] to cancel the insurance policy sued on? The jury answered: No. Second. Did Clyde F. Elkins, prior to the time of the fire mentioned in the pleadings, cancel the policy sued on? The jury answered: Yes. Tbe court properly held that tbe policy is a several and divisible policy of insurance; that there had been no change of ownership, title, or interest in tbe furniture, household goods and wearing apparel covered by the policy; that it was of the full cash value of $500, as shown by tbe undisputed evidence; that proof of loss bad been duly made, and that appellee was entitled to recover unless the appellee bad authorized tbe cancellation of tbe policy prior to tbe fire, and, tbe jury having determined that issue, tbe court rendered judgment for appellee for $500, with interest from tbe date of tbe judgment at tbe rate of 6 per cent. We are of tbe opinion that the court was not in error, as claimed in tbe first assignment, in refusing to charge the jury that, if , there bad been a change in tbe ownership and title of tbe subject of the insurance pri- or to the time of tbe fire, the policy would have become entirely void. The issue as submitted, and tbe judgment as rendered, bad reference solely to tbe furniture, boushold goods and wearing apparel of appellee. As to these items in tbe policy the undisputed evidence shows that tbe ownership, title, and possession bad not changed. Tbe policy as to tbe several items insured is severable. The jury, on evidence sufficient to sustain tbe finding, determined the fact that tbe policy bad not been canceled by consent of ap-pellee. It is not claimed that tbe policy was canceled by reason of any provision in tbe policy. Finding no reversible error, tbe case is affirmed.