German Ins. Co. v. Gibbs, Wilson & Co.

• Decision Date: 31 March 1906
• Citation: 92 S.W. 1068
• Parties: GERMAN INS. CO. OF FREEPORT, ILL., v. GIBBS, WILSON & CO. et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

92 S.W. 1068

GERMAN INS. CO. OF FREEPORT, ILL., v. GIBBS, WILSON & CO. et al.^*

Court of Civil Appeals of Texas.

March 31, 1906.

Rehearing Denied April 28, 1906.

Error from District Court, Limestone County; L. B. Cobb, Judge.

Action by Gibbs, Wilson & Company and others against the German Insurance Company of Freeport, Ill. From a judgment in favor of plaintiffs, defendant brings error. Affirmed.

This suit was originally instituted by the Rotan Grocery Company against the German Insurance Company and Gibbs, Wilson & Co., a firm alleged to be composed of J. B. Gibbs, Laura C. Gibbs, and Lucy C. Wilson, owners of the Merchants' & Farmers' Bank of Kosse, Tex., to recover a judgment on a policy of insurance for $2,000, issued to one F. W. Hewitt. Subsequently the Rotan Grocery Company disclaimed any interest in the policy, and the suit was continued in the name of Gibbs, Wilson & Co., as plaintiffs, and the insurance company, as defendant. The plaintiffs alleged an adjustment of the loss at $1,655.25 under the policy, and sought to recover the amount of such adjustment. The defendant pleaded in abatement, general denial, and various other defenses, the nature of which will appear in the opinion. A trial resulted in a verdict and judgment for plaintiffs, and defendant perfected a writ of error to this court.

Carden, Senter & Carden, for plaintiff in error. Z. I. Harlan and W. T. Jackson, for defendants in error.

BOOKHOUT, J. (after stating the facts).

It is contended that the court erred in refusing to set aside the judgment rendered at a preceding term of the court suppressing the deposition of F. W. Hewitt and reinstate said deposition. The depositions of Hewitt, the insured, were taken on the 16th of January, 1904, by a notary public of Natchitoches parish, La., on a commission addressed "to any clerk of a court of record having a seal or any notary public of Caddo parish, La., or any commissioner of deeds duly appointed under the laws of Texas, within and for said state of Louisiana." The depositions were suppressed on the ground that they could not be lawfully taken by a notary public in and for Natchitoches parish on a commission thus addressed. The statute provides that "upon the appearance of the witness the officer to whom the commission is directed shall proceed to take his answers." Rev. St. 1895, art. 2284. The commission in this case having been directed to any notary public of Caddo parish, the taking of the depositions by a notary public of Natchitoches parish was not a taking by the officer to whom the commission was directed and was unauthorized. Bracken v. Neill, 15 Tex. 109; 6 Enc. Pl. & Prac. 502. The court did not err in refusing to reinstate the depositions.

The court did not err in sustaining the plaintiffs' exceptions to the defendant's plea in abatement. The plea alleged, in substance, that Hewitt, the insured, had died since the institution of the suit intestate; that there was no administrator upon his estate; that his only heirs were his father and mother, Benjamin Hewitt and wife, residents of Limestone county, Tex.; that they were interested in the proceeds of any judgment that might be recovered upon the policy. The policy of insurance provided that the loss, if any, was payable to Gibbs, Wilson & Co. This clause was written in the policy at the time it was issued. The plea in abatement sought to abate the suit because the heirs of the assured were not made parties. The policy having stipulated on its face the person to whom the loss is payable, such person may sue alone and recover the entire loss, and neither the assured nor his legal representatives are necessary parties to the suit. Allison v. Phœnix Ins. Co., 87 Tex. 596, 30 S. W. 547; Insurance Co. v. Williams, 79 Tex. 637, 638, 15 S. W. 478; Joyce on Insurance. vol. 3, par. 2305, note 5; Donaldson v. Sun Mut. Ins. Co. (Tenn.) 32 S. W. 251. Again, at the time the policy was issued, and at the time of the fire, Hewitt was indebted to Gibbs, Wilson & Co., defendants in error, in a sum largely in excess of the face of the policy, and is still so indebted to them. If defendants in error held the policy as collateral security for an indebtedness, largely in excess of the face of the policy, they alone could sue and recover for the loss. Bank v. Security Co., 18 Tex. Civ. App. 105, 106, 44 S. W. 15; Insurance Co. v. Leaverton (Tex. Civ. App.) 33 S. W. 579; 13 A. & E. Enc. Law (2d Ed.) 201, note 6; Greene v. Insurance Co., 84 N. Y. 572.

The defendant pleaded that plaintiff, under the terms of the policy, is merely a trustee for Hewitt; that soon after the suit was instituted, on or about June 30, 1902, the defendant tendered into court and paid the clerk the sum of $87, being the amount of the premium paid for the policy, for the benefit of whoever might be shown to be entitled thereto; that soon after said tender was made Hewitt demanded and received from the clerk of the court the amount of said tender, and took the same in full satisfaction of any and all claims arising under the terms of the policy against defendant, and thereby canceled and annulled it. To this plea plaintiffs excepted, and the court sustained the exception, and this action is assigned as error. The loss under this policy was payable, unconditionally, to Gibbs, Wilson & Co. The policy was attached to plaintiffs' petition as an exhibit. After the fire which destroyed the property insured, Hewitt still recognized the loss as being payable to plaintiffs, and directed them to collect and apply it on his debt to them. Plaintiffs' petition, filed June 30, 1902, set up all these facts in this suit. On July 11, 1902, defendant tendered and paid into the hands of the clerk of the court in which this suit was pending $87, the amount of the premium paid for said policy, for the benefit of whoever it might be shown and decided on the trial to be entitled thereto, and pleaded such tender and asked to to avoid the policy for reasons set up in said pleading then filed. Soon thereafter Hewitt called on the clerk and claimed said $87 and asked the clerk for it, and he paid it to him. There is no pretense, either in the plea in abatement, or the evidence, that this was done with either the knowledge or consent of Gibbs, Wilson & Co. It is held in this state that a clause in a policy of insurance making the loss under it payable to a person therein named, gives such person an interest in the policy, and he cannot be deprived of that interest without his consent. Security Co. v. Bank, 93 Tex. 582, 57 S. W. 22; Bank v. Security Co., 18 Tex. Civ. App. 106, 44 S. W. 15. See, also, Roller Mill Co. v. Insurance Co., (Mo. App.) 79 S. W. 720; Joyce on Ins. vol. 3, par. 2321. The act of plaintiff in error in depositing the premium in court, and the act of Hewitt in withdrawing the same from court having been done without the consent of defendants in error, and they not being parties thereto, did not deprive defendants in error of their interest in the policy and the right to prosecute this suit.

Upon the trial plaintiff offered in evidence an instrument entitled "Proof of Loss," which was purported to have been prepared by F. W. Hewitt, setting out the extent of his loss, amount of insurance, etc. Thereupon defendant asked the court to instruct the jury that this evidence could only be considered upon the issue as to whether or not Hewitt furnished the proof of loss required by the policy, and that the jury should not consider such evidence for any other purpose, and especially that the jury should not consider it as evidence of the value of the property destroyed, and that they should not consider said instrument as the act of the defendant or its agent. The request was denied, and the evidence was admitted without qualification. The fire which destroyed the insured property occurred November 30, 1901. On December 10, 1901, one Wm. L. Easley, an adjuster for defendant insurance company, visited Kosse, the place of the fire, for the purpose of adjusting the loss under its policy. He called first at the plaintiffs' bank and asked its employés to show him the policy issued by defendant to Hewitt, then asked to see the policy register kept by its local agent at Kosse, and was shown and examined both the policy and the register. He then inquired for Hewitt, the assured, and Hewitt was sent for by one of plaintiffs' employés. After this, and on the same day, as Easley was taking the train to leave Kosse, he met Gibbs, defendant's local agent, who had come in on the train Easley was going out on, and told him that he had that day adjusted the Hewitt loss under the policy. Plaintiffs, in their petition, set up the issuance by defendant of its policy, the loss under it, alleged an adjustment of the loss, and that the papers pertaining to and showing the adjustment were in the hands of defendant, notifying it to produce them on the trial, and asking judgment for the amount due as fixed by the adjustment. Defendant's counsel, in conformity with such notice, turned over on the trial to plaintiffs' attorneys the paper styled "Proof of Loss," with the indorsements thereon. This paper was shown to have been obtained by defendant's counsel from the defendant's state agents. On the back of said paper, and in the handwriting of Wm. L. Easley and written with the same ink with which he signed his name, were indorsements identifying this policy, giving the name of the assured, amount of the policy, date of the fire, date proofs were received, giving "Amount of loss claimed, $1,655.25" and "Amount allowed, $1,655.25"—all of said indorsements signed by Wm. L. Easley, adjuster. At the bottom of said indorsements was written the following: "60 days." The policy provides that the "ascertainment or estimate" of loss or damage to the property insured "shall be made by the insured and this company, * * * and, the amount of loss or damage having been thus determined, the sum for which this company is...