#### SECURITY NAT. FIRE INS. CO. et al. v. KIFURI.

No. 5358.

Supreme Court of Texas.

Feb. 18, 1931.

Nelson Lytle, T. M. West, and Hardy & Hardy, all of San Antonio, for plaintiffs in error.

David E. Hume, of Eagle Pass, for defendant in error.

ORITZ, C.

This suit was originally Aled by A. Kifuri, hereinafter called plaintiff, against the Security National Fire Insurance Company, the Fireman’s Fund Insurance Company, and the National Liberty Insurance Company,- on three insurance policies in the sums of $3,000, $3,000, and $4,000, respectively. All of these policies insured the property therein protected for one year, from the 16th day of July, 1927; all expiring July 16, 1928.

. All three of the policies insured the property described therein in the following language:

> “Mercantile Building Form.

> “$3,000.00 On the one story metal roof G. I. & Stucco Building and additions attached thereto, including foundations, awnings (except cloth awnings), permanent piping and Ax-tures for heating, lighting and water service, while occupied for the following purposes only: lee Factory, and situated as follows: No. 444 and 445 S. side Church Street, in Eagle Pass, Texas, being Lot No. 1 & 2, Block No. 7R5NH, Map Page 8, File No. 769.

> “$ Nil On Store and Office Furniture and Fixtures, including Counters, Shelving, Iron Safes, Typewriters and Cash Registers, while contained in the building above described.

> “$ Nil On-

> “No insurance attaches under any of the above items unless a certain amount is spec-iAed and inserted in blank space immediately preceding the item.”

All three of the policies also contained the following clauses with reference to concurrent insurance:

> “Total concurrent insurance permitted, including this policy, $15,000.00 as follows: $15,000.00 on.Building; $ - on Furniture and Fixtures; $-on-.

> “It is understood and agreed that no other insurance is permitted unless the total amount allowed, including this policy, is entered in blank space in paragraph next above.”

All of the policies also contain the following clause, with reference to proportion of liability:

> “This company shall not be liable under this policy for a greater proportion of any loss on the described property, or for loss by and expense of removal from premises endangered by Are, than the amount hereby insured shall bear to the whole insurance, whether valid or not, or by solvent or insolvent insurers, covering such property, and the extent of the application of the insurance under this policy or of the contribution to be made by this company in case of loss, may be provided for by agreement or condition written hereon or attached or appended hereto. Liability for re-insuranoe shall be speciAcally agreed hereon.”

The suit was based on three respective Texas Standard Are insurance policies issued by *148the above-named three companies, and in his petition the plaintiff alleges that the building was a total loss, and he sued each insurance company for the full amount of each insurance policy. The petition, however, had the policies attached to it, and it makes them parts thereof. The prayer for relief is for judgment, as upon a liquidated demand, against the two defendants first mentioned for $3,000 and interest each, and the third for $4,000 and interest, together with costs, and the petition also prays for general and special relief.

The record shows that the three insurance companies were joined as codefendants in one suit over their protest and that each filed separate pleas in abatement which were duly overruled, after which they filed separate pleas of misjoinder of causes of action and of parties defendant. These pleas were also overruled.

After the overruling of the pleas in abatement and misjoinder, each insurance company filed separate supplemental answers containing general and special exceptions and general denials, which exceptions the court overruled in detail, and the case proceeded to trial before a jury as one joint suit upbn special issues.

In response to the special issues submitted, the jury found: (a) That the plaintiff furnished the insurance companies with proof of loss sixty days before filing suit, which was retained by them without objection;, (b) that the difference in value between the bare building without considering any appliances, parts, piping, or machinery, before dnd after the fire, was $6,000; (c) that the difference in value between the building equipped as an ice factory, in its condition before the fire, and its value after the fire, was $12,222; (d) that some of the machinery, ice factory appliances, and piping had become affixed to the building or had become a part of the permanent piping and fixtures for heating, lighting, and water service; and (e) that the value of the machinery, ice' factory appliances, and piping which had become affixed to and a part of the building was $6,222.

By proper assignments the insurance companies complain of the holding of the Court of Civil Appeals [12 S.W.(2d) 235] to the effect that there is no misjoinder of parties or causes of action in attempting to sue the three insurance companies in one joint suit on the three separate policies!

In connection with the assignment on this question of misjoinder, the insurance companies cite the case of Hartford Fire Insurance Company v. Post, 25 Tex. Civ. App. 428, 62 S. W. 140, and contend that the holding in the instant case is in conflict with the holding in the Post Case.

The Court of Civil Appeals attempts to distinguish the facts in the instant case from the facts in the Post Case, but we are of the opinion that a careful reading of the opinion in that case will disclose that there is a direct conflict between the holding of the Court of Civil Appeals at San Antonio in the instant case and the holding of the Court of Civil Appeals at Galveston in the Post Case. In fact, we think the language of the two policies in the Post Case, and the language in the three policies in the instant case fixing the proportion of liability in case of partial loss, is not only the same in legal effect, but the same in actual language. It therefore becomes necessary to settle the conflict.

Under the foregoing record the Supreme Court is of the opinion that since the three policies here involved all in effect provide-that in case of partial loss each company shall only be liable for the proportionate amount that its insurance bears to the whole insurance, all parties, insured and insurers, are jointly interested in ascertaining the amount of loss so that the proportionate liability of each insurance company can be ascertained. It follows from this that all three insurance companies are sufficiently jointly interested in the subject-matter of the litigation to justify all being joined as defendants in one suit. We therefore overrule the pleas of misjoinder filed by the several insurance companies. This overrules the holding in the Post Case.

By proper assignments the insurance companies contend that the policies of insurance here sued on as written do not cover all the ice-making machinery and fixtures contained in the building. We sustain these assignments. The policies cover a “One story metal roof G. I. & Stucco building, and additions thereto, including foundations, awnings (except cloth awnings), *permanent piping and fixtures for heatmg, lighting and water service.”*(Italics ours.) Under the plain wording of the policies, they only cover such piping "and fixtures as are permanent, and are used for *heating, Ughting, and water service.*

The récord discloses that many items for ice-making machinery and fixtures, not for heating, lighting, or water service, and not a part of the building proper, were included in the recovery. The policies as written do not cover the things attached to the building that would be classed, in law, strictly as fixtures, except such as are used for heating, lighting, and water service. Also there is no allegation of fraud, accident, or mistake contained in the plaintiff’s petition, and no effort to reform the contracts.

On account of the fact that the recovery includes items for ice-making machinery and fixtures not covered by the policies, the judgments of the Court of Civil Appeals *149and district court should be reversed, and the case remanded to the district court for a new trial.

CURETON, C. J.

The foregoing opinion is adopted as the opinion of the Supreme Court, and judgment will be entered in accordance therewith.