The Sun Mutual Insurance Company and Lancashire Insurance Company v. Roberts, Willis & Taylor Company, 90 Tex. 78

BROWN, Associate Justice. Two separate suits were filed in the District Court—one being styled, Roberts, Willis & Taylor Company against The Sun Mutual Insurance Company, and the other, the same plaintiffs agáinst the Lancashire Insurance Company. The suits were upon different policies of insurance issued by each of the companies. The cases were both tried at the same time, and for the purposes of appeal were consolidated after trial—that is, one statement of facts was made ont and it was agreed that both cases should be tried by the Court of Civil Appeals upon the one transcript.

The policy of the Sun Mutual Insurance Company issued .to Burge and Allen was for the sum of $1000. This suit might have been brought in the County Court, for which reason this court has no jurisdiction of this application. It is unnecessary to notice the application further in so far as it relates to the Sun Mutual Insurance Company. The.policy of insurance issued by the Lancashire Insurance Company to Burge and Allen, upon which suit was instituted, was for the sum of $1500.

In the District Court judgment was rendered for the defendant, which, upon appeal, was reversed and remanded by the Court of Civil Appeals. Application is made for a writ of error from that judgment, and it is claimed that this court has jurisdiction for the reason that the decision of the Court of Civil Appeals in holding that the “waiver of the breach of the policy by the Insurance Company of conditions of their policy could exist and would be held as a matter of law to have taken place independent of a new agreement,” etc., is in conflict with the decisions of the Supreme Court in the cases of Insurance Co. v.

Lecroix, 45 Texas, 158, and Insurance Co. v. Hutchins, 53 Texas, 61. It is sought to 'give this court jurisdiction of the application under

Article 941, Revised Statutes, which reads as follows: “All causes shall be carried up to the Supreme Court by writs of error upon final judgment, not on judgments reversing and remanding causes, except in the following cases, to-wit: ******* “5.

Cases in which a Civil Court of Appeals overrules its own decisions or the decision of another Court of Civil Appeals or of the Supreme Court.” Under this statute the conflict between the decision of the court in question and that with which it is claimed to be in conflict must be of such a nature that one would operate to overrule the other in ease they were both rendererd by the same court. In other words, the decisions must be based practically upon the same state of facts and announce antagonistic conclusions.

It is not sufficient to give jurisdiction that a Court of Civil Appeals may have misapplied a principle of law announced by a decision of another Court of Civil Appeals or of this court.

In the two cases cited as being in conflict with the decision in the present case, the question of waiver arose upon exceptions to pleading, and in the course of the opinion a general proposition was laid down upon that question which might be considered as in conflict with the decision of the court in the case presented by this application, but the facts of the cases are so different that we do not consider the conflict to be such as under the statute gives ufe jurisdiction to grant a writ of error.

The application for writ of error will, therefore, be dismissed for want of jurisdiction in this court to entertain it. Application dismissed.