
    PECKLO v. AMERICAN INS. CO. OF NEWARK, N. J.  SAME v. FIRE & MARINE UNDERWRITERS’ AGENCY OF THE AUTOMOBILE INS. CO. OF HARTFORD, CONN.
    (No. 1536.)
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 6, 1923.
    Rehearing Denied Jan. 10, 1924.)
    1. Insurance <@=396 (2) — Examination of insured held to constitute! waiver of forfeiture clause.
    That the insurer summoned insured before its adjuster and its attorney of record to testify under oath at great expense and inconvenience, taking down his testimony and causing him to sign it, all being done after insurer knew of insured’s breach of a forfeiture clause in his policy held to constitute sufficient waiver of the’forfeiture clause.
    2. Insurance &wkey;>336(l) — Clause for forfeiture for taking out other insurance on same property held valid.
    A fire policy clause providing for forfeiture for taking out other insurance on the same property is valid.
    3. Insurance &wkey;396(2) — Nonwaiver clause held valid.
    A clause in fire policy permitting insurer to examine insured at any time under oath without waiving any provision or condition of the policy or forfeiture thereof is valid, and prevents any waiver of breach of coinsurance clause by reason of such examination.
    4. Insurance <©=640(2)— Insurer must plead - agreement that investigation should not waive forfeiture. •
    An agreement between insurer and insured that latter’s investigation of the fire and amount of damages should not waive any provision in the policy or forfeiture thereof must be pleaded as an affirmative defense in confession and avoidance in response to supplemental petition pleading waiver, whether part of the policy or not.
    5. Pleading <&wkey;l30 — Rule for pleading in confession and avoidance stated.
    Every defense which does not deny the truth of allegations of facts set up by plaintiff as constituting his cause of action, but which seek to destroy the prima facie ease thus made by independent facts transpiring prior to, concurrently with, or subsequent to the facts constituting the plaintiff’s cause of action must be pleaded in confession and avoidance.
    6. Insurance <&wkey;640(I)— Evidence to show defensive provisions of policy not effective without special pleading.
    In a suit on a policy unless insurers plead defensive provisions in confession and avoidance, evidence thereof, however adduced, will not support their judgment.
    Appeal from District Court, El Paso County; Ballard Coldwell, Judge.
    Consolidated separate suits by A. F. Peck-lo against the American Insurance Company-of Newark, N. J., and the Fire & Marine Underwriters’ Agency of the Automobile Insurance Company of Hartford, Conn. Judgment for defendants, and plaintiff appeals.
    Reversed and remanded.
    Jos. U. Sweeney and R. B. Rawlins, both of EÍ Paso, for appellant.
    Armstrong & Morrow, of El Paso, for ap-pellees.
    
      
      writ o£ error granted March 5, 1924.
    
   HIGGINS, J.

Appellant brought separate suits in the district court of El Paso county against the American Insurance Company of Newark, N. J., and the Fire & Marine Underwriters’ Agency, etc., to recover upon fire insurance policies issued by them, respectively, on certain household furniture. In each of the cases judgment in favor of the defendant was rendered, and by agreement the appeals were brought up in a consolidated record.

The record discloses that three insurance policies were issued by different companies covering such furniture, each in the sum of $1,000, as follows: The first by Queen Insurance Company, issued by the Douglas C. Crowell agency, dated July 1, 1921; the next by the Fire & Marine Underwriters’ Agency, etc., issued by the Anderson Investment Company, agents, dated November 26, 1921; the next by the American Insurance Company, through D. C. Crowell & Co., agents, dated Décember 14, 1921. The first two policies were for the term of one year and the last .for three years. The first policy-authorized no concurrent insurance; the last two policies authorized concurrent insurance as follows: “Total concurrent insurance permitted, including this policy, $2,000.00. * * * ” A partial loss by fire aggregating $1,437.50 occured on May 4, 1922. Proof of loss was made by Peeklo, and payment has been refused by the appellees.

Each of the three policies contain the following provisions:

“This entire policy, unless otherwise provided by agreement indorsed hereon or ad'ded hereto, shall be void 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 this policy. * * * ” '
“The assured shall, as often as requested, submit to examination under oath by any person named by this company and subscribe the same and this company shall not be held to have waived any provision or condition of this policy or any forfeiture thereof by any act or proceeding on its part relating to an examination herein provided for.”

On May 10, 1922, a written agreement was entered into between Peeklo and an adjuster for the appellees and other insurance companies, to the following effect:

“That any action, taken by said parties of the second part in investigating the cafise of fire or investigating and ascertaining the amount of loss and damage to the property of the party of the first part caused by fire alleged to have occurred on May 4th, 1922, shall not waive or invalidate any of the conditions of the policies of the parties of the second part, held by the party of the first part, and shall not waive or invalidate any rights whatever of either of the parties to this agreement.
“The intent of this agreement is to preserve the rights of all parties hereto and provide for an investigation of the fire and the determination of the amount of the loss or damage, without regard to the liability of the parties of the second part.”

Thereupon on August 29, 1922, Pecklo in the presence of the adjuster of the appel-lees, and their attorney, submitted to an examination under oath concerning the fire occurring at his residence in which the property was in pajrt damaged and in part destroyed, which testimony so given by Pecklo was reduced to writing and sworn to by him.

In bar of the action appellees in their answers set up the breach by Pevklo of that provision in the policy avoiding the same if the insured had' or thereafter procured insurance in an amount greater than that authorized. The plaintiff .by supplemental petition set up that the defendant had waived any right of forfeiture under said provision in the contract by virtue of the action of the defendant through its duly authorized adjuster and its attorney of record, summoning the plaintiff before such adjuster and its attorney of record on August 29, 1922, and causing him to be sworn and his testimony taken down in writing, causing him to sign same under oath after a tedious and exhausting examination, at much expense and inconvenience to the plaintiff, all of which was done after the defendants were aware of the breach of the .coinsurance clause. To the matter set up in the supplemental petition the defendants made no reply. The case was tried without a jury. Findings and conclusions were not filed by the trial court.

Appellant presents but two propositions in his brief in substance, as follows: (1) That by the matter set up in his supplement tal petition the appellees waived the breach of the coinsurance clause. (2) There being no plea by appellees' in confession and avoidance of the matter set up in the supplemental petition there was no support for the judgments in their favor based upon the nonwaiver agreement incorporated in the policies and the agreement entered into subsequent to the loss.

The three counter propositions submitted’ by appellees are to the effect: (1) The breach of the coinsurance clause avoided the policies. (2) The holding of the examination did. not waive the breach of the coinsur-anee clause because of the provisions in the policy requiring the assured to submit to. such examination and which stipulated that the holding of same should not waive any provision or condition of the policies or any forfeiture thereof, (3) It was not necessary for the appellees to plead such nonwaiver-agreement in the policy in order for them to-rely upon same.

The record does not disclose the grounds upon which the trial court based its judgment, but the first proposition asserted by appellant is supported by a number of decisions, and the judgment cannot be sustained upon the theory that the matter set up in the supplemental petition, and shown by the evidence to be true, was insufficient to constitute a waiver by appellees of the breach of the coinsurance clause. Insurance Co. v. Polemanakos (Tex. Com. App.) 207 S. W. 922; Insurance Co. v. Moriarty (Tex. Civ. App.) 37 S. W. 628; Insurance Co. v. O’Neal, 14 Tex. Civ. App. 516, 38 S. W. 62; Assurance Co. v. Munger, etc. (Tex. Civ. App.) 49 S. W. 271; Insurance Co. v. Evants, 25 Tex. Civ. App. 300, 61 S. W. 536.

So unless the nonwaiver agreement incorporated in the policy or the separate one dated May 10, 1922, is available to the ap-pellees the judgments must be set aside.

The first counter proposition of the appellees is well settled law. Insurance Co. v. Griffin, 66 Tex. 232, 18 S. W. 505; Insurance Co. v. Blum, 76 Tex. 653, 13 S. W. 572. The validity of the nonwaiver clause in the policies is also established by the decision in American Central Ins. Co. v. Nunn, 98 Tex. 191, 82 S. W. 497, 68 L. R. A. 83. The second contention of appellees, that in view of this Stipulation they cannot be considered as having waived the forfeiture, is also sound, provided the pleadings are in such condition the stipulation is available to. them.

The issue thus resolves itself into a question of pleading. The facts set up in the supplemental petition was new affirmative matter in avoidance of the defense set up in the defendant’s original answer. Thenonwaiver agreement does not in any wise disprove or rebut the truth of the specific-facts pleaded in the supplemental petition. It is an agreement which avoids the operation of a waiver arising upon the facts, pleaded by the plaintiff. To this court it seems clear that the nonwaiver agreement-is defensive matter in confession and avoidance of the facts pleaded in the supplemental petition. This being its nature it was necessary that the same be pleaded to be-available to the defendants. The fact that it was a part of the policy sued upon does not alter the rule that every defense which does not deny the truth of the allegations of fact set up by the plaintiff, as constituting his cause of action, but which seeks to-avoid or destroy the prima facie case thus made “by independent facts transpiring pri- or to, concurrently with, or subsequent to the facts constituting the plaintiff’s cause of action” must be presented to the court by a plea in the nature of confession and avoidance. Towns on Pleading (1st Ed.) 368. Defensive provisions in a policy of insurance must be pleaded by the insurers in order to be available to them in suits upon such policies, and, unless pleaded, evidence thereof however adduced will not support a judgment in their favor. Ginners, etc., v. Wiley & House (Tex. Civ. App.) 147 S. W. 629, and cases there cited.

Appellees seem to recognize that the non-waiver agreement of May 10, 1922, was not available to them in the state of their pleadings, for their counter propositions are not predicated upon that agreement, but we can see no distinction so far as the rule of pleading is concerned between that agreement and the one contained in the contracts sued upon. Phoenix Assur. Co. v. Deavenport, 16 Tex. Civ. App. 283, 41 S. W. 399; Assur. Corporation v. Rochelle, 13 Tex. Civ. App. 232, 35 S. W. 869; Wooters v. Railway Co., 54 Tex. 294.

There being no pleadings to support the judgments in favor of the appellees, based upon either of the nonwaiver agreements, the judgments in the two cases must be reversed. Upon the authority of Insurance Co. v. Yarbrough (Tex. Com. App.) 215 S. W. 842, the judgments will be reversed and remanded instead of being rendered. 
      —.Wt* other cases see same topic and KE^Y-NuMBER in ali Key-Numbered Digests and Indexes
     