Texas State Mut. Fire Ins. Co. v. Richbourg

LEVY, J. (after stating the facts as above). The principal question in the appeal is that of whether or not the policy of insurance was avoided. There was sufficient evidence, and of a substantial kind, to carry the issue to the jury concerning the alleged misrepresentations of appellee. In view of the jury findings, the policy was not avoided by reason of misrepresentations on the part of the appellee. While the appellee, under the evidence in this ease, would, as a matter of law, be held to have known of the terms of the stipulation appearing in the rider (Morrison v. Ins. Co., 69 Tex. 353, 6 S. W. 605, 5 Am. St. Rep. 63), nevertheless it is believed that the trial court did not err in holding, as involved in the judgment, that the policy is not void under the terms of the said stipulation on account of the breach thereof. The terms of the stipulation are that “This'policy,” meaning the entire policy, “shall be null and void and of no force or effect upon the insured’s failing to conform to the above requirements.” The “above requirements” were that three fire extinguishers should be placed in the gin plant, and the inside walls of the ginhouse should be whitewashed or painted. The statute expressly provides that a breach of any condition or provision of a fife insurance policy upon personal property shall not render void the policy, unless such breach contributed to bring about the destruction of the property. Article 4874a, Vernon’s Sayles’ Ann. Civ. St. 1914. There is no evidence showing that at the time of the fire and loss the breach of the stipulation contributed in any way to the destruction of the property. The only evidence pertaining to the fire is that of the witness Mayfield, who testified as follows: “I was living about 150 yards, right close, from the gin. Nobody was living in any house closer to the gin than the house in which I was living at the time of the fire. The gin burned at night. When I discovered the fire, the gin building was just about burned down. I looked at the dock when I saw the blaze, and it seems to me now that it was 12 o’clock. Seeing the blaze was what first attracted my attention to the fire. There was not anybody out there at the time.” That the breach of the condition or provision relied on' contributed to bring about the loss of the property is a defense to be pleaded by the insurer, and the burden of proof of the defense was upon appellant. The burden of proof is not sufficiently discharged or met in the evidence. Ins. Co. v. Harris, 26 Tex. Civ. App. 537, 64 S. W. 867; Ins. Co. v. Catchings, 104 Ala. 176, 16 South 46. The breach of the stipulation not being shown in point of fact, to have contributed to the loss of the property, the policy of insurance would not, under the statute, be avoided as to the personal property insured; and consequently, as the contract of insurance is an entire contract, the breach of the stipulation, in virtue of its terms, would not avoid the entire policy as to all of the insured property. Bills v. Hibernia Ins. Co., 87 Tex. 547, 29 S. W. 1063, 29 L. R. A. 706, 47 Am. St. Rep. 121; Mecca Fire Ins. Co. v. Coghlan (Tex Civ. App.) 134 S. W. 267. We have considered each assignment of error, and conclude that each of them should be overruled upon the ground that no reversible error exists. The judgment is affirmed.