61 Tex. 287 (Tex. 1884), 1785, East Tex. Fire Ins. Co. v. Coffee

Docket Nº:1785.
Citation:61 Tex. 287
Attorney:C. L. Cleveland, for appellant, Wheeler & Rhodes, for appellee,
Case Date:March 14, 1884
Court:Supreme Court of Texas

Page 287

61 Tex. 287 (Tex. 1884)




No. 1785.

Supreme Court of Texas.

March 14, 1884

APPEAL from Galveston. Tried below before the Hon. W. H. Stewart.

Suit brought on a policy of insurance to Coffee & Pearson, and transferred, by consent of defendant, to Coffee, and to recover the amount of loss occasioned by fire to a stock of goods insured thereby, alleged to have been burned.

The defendant pleaded demurrers general and special; that the suit was brought prematurely; that plaintiff had not complied with the conditions of the policy in failing to furnish defendant with preliminary proofs, particular statement of loss, as required by defendant under the terms of the policy; to which the plaintiff replied by supplemental petition that the defendant had waived all such requirements, and had refused to pay the loss for which he sued, to which plea of waiver defendant demurred, and was overruled; defendant pleaded general denial. Verdict for plaintiff for $2,155.55, and judgment thereon.

To the facts stated in the opinion should be added the following: Harris, witness for plaintiff, having testified that he assisted plaintiff in making out the preliminary proofs of loss, and that at his request he had delivered them to T. R. Bonner, the secretary of defendant, on 24th April, 1882, and that a few days thereafter, he, witness, at the time being the traveling agent or drummer of Geo. Seeligson & Co., who held the policy by assignment as collateral security for plaintiff's indebtedness to Seeligson & Co., and that witness considered himself as having authority to demand pay of the policy and to apply so much as necessary to pay Seeligson's debt and to remit to Coffee a check for the balance. That the secretary, T. R. Bonner, and Mr. Gambling, the bookkeeper, and several other gentlemen were in defendant's office at the time. The witness Harris was then asked to state what was then said to him in reference to the subject of the claim under the policy by any officer of the defendant company. To which witness replied, " When I went into the office of the defendant company (the persons being present as above stated), I said: Gentlemen, how about the claim of Coffee on his policy; to which either T. R. Bonner or Mr. Granberry (I cannot say which) replied that affidavits had been made charging him with having burnt his own goods, and that matter had to be cleared up. This response was made in the immediate presence and hearing of Bonner; don't know whether it was made by Bonner or the bookkeeper of defendant." To which question to and answer of the witness the defendant objected on the ground that the same was not admissible under the pleadings, nor competent to establish or prove a waiver on the part of the defendant of any stipulation or condition in the policy or of any right of defendant thereunder, and because, further, it did not appear that witness was acting as the agent of plaintiff, or that he communicated the fact that he was the agent of plaintiff, if he was such agent. The witness was here permitted to testify as to the last ground of objection, and said: " I assisted in making up the preliminary proofs of loss for plaintiff. He requested me to take them and deliver them to the secretary, which I did just as I would have done for any friend. I never told any officer of defendant then or at any time that I was the agent of the plaintiff, for I was not. I represented G. Seeligson & Co.; was then the drummer of that house, and was making the matter a subject of inquiry on their behalf, as they were the assignees of the policy as collateral for the debt which I was authorized to collect, and, after deducting Seeligson's debt, to remit plaintiff the balance." The court overruled defendant's objections and admitted the evidence so objected to.

The testimony introduced was quite too lengthy for insertion here.

C. L. Cleveland, for appellant, cited, on the admission of Harris' evidence: Mims v. Mitchell, 1 Tex. 443; Caldwell v. Haley, 3 Tex. 317; Hall v. Jackson, Id., 309; Wright v. Wright, Id., 168; Paul v. Perez, 7 Tex. 345; Denison v. League, 16 Tex. 408; Flanders on Ins., 527, 528; 5 Bennett's Ins. Cases, 164, 188; Texas Banking Co. v. Hutchins, 53 Tex. 61; Ins. Co. v. Lacroix, 45 Tex. 158; Story on Agency, sec. 134 et seq.; Livermore on Agency, 237; Bigelow on Estoppel, 480; Wood on Insurance, p. 411 et seq., and p. 834 et seq.; note 1 to p. 705; 3 Gill (Md.), 370.

On the absence of proper parties, he cited: McFadin v. MacGreal, 25 Tex. 79...

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