Warren v. Bankers' & Merchants' Town Mutual Co.

This is a suit on an insurance policy covering a small one story frame house in the town of Laredo, insured in the sum of $400, and $50 on barber’s tools, furniture, etc., contained in a room of the building used as a barber’s shop. Plaintiff recovered in the lower court and defendant appealed.

■’■‘vlSue.fpoiicy: mutual companies. ■ I. Among the instructions given the court told the jury that if they found for the plaintiff and found “that there was a total loss and destruction of the building then the law fixes the amount of the defendant’s liability therefor at the amount specified m the policy which is - four hundred dollars,” etc.

*190In so instructing the court committed error. The sections of the statute fixing the liability of insurance companies for buildings destroyed at the sum named in the policies are found in chapter 89,. Revised Statutes 1889, sections 5897 and 5898; and these provisions do not apply to insurance taken by town mutual insurance companies, since the legislature has exempted such companies from the provisions of that chapter. Laws of 1895, p. 200.

Uptownof pánlés1: laws °£ lS9S' II. On evidence sufficient for that purpose the court in substance instructed the jury that if they found that within a reasonable time after the fire the plaintiff gave notice to defendant’s agent nearest to the place of loss, then it was the duty of defendant to furnish plaintiff with blank proofs of loss required by the policy; and if defendant failed to furnish such blanks then under the law the company will be deemed to have waived such proofs.

This instruction is based on a late statute of this state found in the session acts of 1895 at page 195. But defendant’s counsel contend that said statute has no application to these town mutual insurance companies, the class to which the defendant belongs. The position of counsel is not tenable. The exemption before alluded to (Laws 1895, p. 200) goes only to “the provisions of the insurance laws as mentioned in chapter 89” of the revision of 1889, while the statute relating to the waiver of proofs of loss, as above cited, was not passed until 1895, and by its terms applies to all insurance companies. It is an entirely new statute, is not an amendment even of any provision of chapter 89, and therefore does not belong to that chapter. Plaintiff’s instruction number 8 therefore properly declared the law.

*191• But for the error in giving plaintiff’s ninth instruction, first alluded to, the judgment must be reversed and cause remanded.