Aetna Ins. Co. v. Holcomb
| Decision Date | 26 March 1896 |
| Citation | 34 S.W. 915 |
| Parties | AETNA INS. CO. v. HOLCOMB. |
| Court | Texas Supreme Court |
Action by L. F. Holcomb against the Aetna Insurance Company. The judgment of the court of civil appeals affirmed a judgment of the district court of Denton county for the plaintiff (31 S. W. 1086), and defendant brings error. Reversed.
Harris & Knight, for plaintiff in error. Owsley & Ragsdale, for defendant in error.
L. F. Holcomb filed his petition in the district court of Denton county against the defendant insurance company, alleging it to be a corporation doing business in this state, with an office and agent in the county of Denton. The petition alleged that, on July 5, 1893, the defendant, in consideration of the sum of $43.10, paid to it by the plaintiff, executed and delivered to the plaintiff a certain policy of insurance, duly signed by the proper officers of the company, by which policy the defendant insured the plaintiff for the term of one year, against all loss or damage by fire, to an amount not exceeding $3,450, to certain property described in the petition, consisting of stallions, jacks, and feed, and on harness and wagons, while contained in the building in the petition described. The petition alleged the destruction of the property by fire during the continuance of the policy, the making of proofs of loss, and the giving of notice of fire, required by the terms of the policy, and prayed for judgment for the sum of $3,450, with interest. Defendant answered by general denial and by special answer, setting up several grounds of defense not necessary to be mentioned. Among other things, it was alleged that the property described in the policy of insurance was incumbered by two chattel mortgages, executed by the plaintiff,—one to the Denton County National Bank, for $1,300; and also a chattel mortgage upon one of the animals, given to H. C. Clark, for $500,—both of which chattel mortgages were alleged to be in full force at the time the policy was issued and unknown to the insurance company. The answer set up a condition of the policy which, so far as it applies to the questions presented, is as follows: "That the entire policy, unless otherwise provided, by an agreement indorsed thereon or added thereto, shall be void, * * * if the subject of insurance be personal property and be or become incumbered by a chattel mortgage." The plaintiff filed a supplemental petition, containing exceptions to the defendant's answer, and alleged, in substance, that the defendant company examined the property insured, and issued the policy after a full examination of the same; that the chattel mortgages mentioned in the defendant's answer were duly registered in the office of the clerk of the county court of Denton county, Tex., as the law directs, and that the defendant thereby had full notice thereof, and if the defendant did not have actual notice thereof it was the fault of its agent issuing the policy, because he did not inquire of the plaintiff concerning said mortgages, and the plaintiff fully and truly answered all inquiries made of him by the agent before the policy was issued; that the defendant, by its said agent issuing said policy, delivered the policy in a sealed envelope, so that the plaintiff did not read the same, and was wholly ignorant of the provision of the policy, relied on by the defendant as a defense in this case, and was so kept ignorant thereof by the said acts of the agent until after the fire occurred; that, in issuing and delivering the policy at the time the property was mortgaged, without examining the records of mortgages, or inquiring thereof, and in delivering the policy sealed, and receiving the premium for said insurance, the said defendant consented to said mortgages, and waived said provisions in said policy. The facts in the case were undisputed, and are as follows: The defendant issued the policy of insurance, as alleged by the plaintiff, which contained the conditions alleged by the defendant. At the time of the issuance of the policy sued on, and at the time of the loss thereunder, all the live stock mentioned and described therein was incumbered by chattel mortgage, executed by the plaintiff to the Denton County National Bank on May 20, 1893, to secure a debt of $1,300, due by the plaintiff to said bank. This mortgage was duly filed and registered as a chattel mortgage in the office of the clerk of the county court of Denton county, May 20, 1893. The jack, Cleveland, described in said policy, was also incumbered at the time of the issuance of the policy and the loss, by a valid chattel mortgage, executed by plaintiff to H. C. Clark, on June 9, 1892, to secure a debt of $500. This mortgage was duly filed and registered as a chattel mortgage in the office of the clerk of the county court of Denton county on June 9, 1892. The defendant had no actual notice of the mortgages, and did not examine the record, made no inquiry of the plaintiff as to the existence of mortgages, and plaintiff said nothing about mortgages. Plaintiff requested defendant to deliver the policy to I. B. Walker at the Denton County National Bank, where plaintiff kept all of his valuable papers. It was so delivered, in a sealed envelope, on the day of its issuance. Defendant's agent sealed the envelope, as he usually did when he delivered policies at said bank, because Mr. Davenport, an officer of the bank, was an insurance agent, and competitor for business, and defendant's agent did not wish him to see the date of the expiration of the policy. Defendant's agent did not know that the bank had any interest in the policy, and understood that it was to be left there for safe-keeping. The policy was on the usual printed form, always used by defendant, and the printed conditions were similar to those contained in all fire insurance policies. The property mentioned in the policy was destroyed by fire on July 15, 1893, and was of the market value alleged in the petition. Proofs of loss were made by the plaintiff in due form, within the time required by law. The defendant did not require plaintiff to make a written application for the insurance, and the defendant's agent examined the property before issuance of the policy. Plaintiff paid the premium, $43.10, after he was notified by defendant of the delivery of the policy to Walker on July 5, 1893, and was then notified by defendant's agent that the policy was delivered in a sealed envelope. The plaintiff did not, in fact, see the policy until after the fire. The case was tried before the court, and a judgment rendered for the plaintiff, which judgment was affirmed by the court of civil appeals.
The plaintiff in error assigns the following grounds in its application to this court for writ of error: (1) The court of civil appeals erred in not making the additional findings prayed for in defendant's motion therefor. (2) The court of civil appeals erred in holding that the defendant, by making a personal examination of the property, waived a condition in the policy relating to title and incumbrances. (3) The court erred in holding that the ignorance of plaintiff of the conditions of the policy operated to relieve him from the effects of such conditions. (4) That the court of civil appeals erred in holding that the record of the chattel mortgage was notice to the defendant that the property was incumbered. (5) That the court erred in holding that the defendant retained the premium paid by plaintiff, and was thereby estopped from defending under the conditions of the policy, and especially because no such waiver was pleaded.
The first ground of error presented by the application is that the court of civil appeals refused to find additional conclusions of fact in response to the motion made by the defendant. In this case it is unimportant, for the reason given by the court of civil appeals in the following language: "The facts are uncontroverted, and the record contains a concise statement thereof." It is the practice of this court to consider the uncontroverted evidence pertinent to the questions before the court, when no findings of fact have been made by the court of civil appeals upon such issue.
Plaintiff in error complains that the court of civil appeals held that the record of the mortgages operated as notice to the agent of the insurance company. Upon examination of the opinion of the court of civil appeals, and the conclusions of fact and law filed by the trial court, we conclude that neither court intended to hold that the record of the mortgages operated as notice to the insurance company, but that the fact of the record being in existence and accessible to the agent was a circumstance which was considered with others in determining whether the agent had waived the condition of the policy providing for a forfeiture in case of the existence of a mortgage upon the property insured. As the judgment must be reversed, and the cause remanded for another trial, we think it proper to pass upon that question. Article 3334, Rev. St., is in this language: "Chattel mortgages and other instruments intended to operate as mortgages of or liens upon personal property shall not hereafter be recorded at length, as heretofore required, and when deposited and filed in accordance with the provisions of this act shall have the force and effect heretofore given to a full registration thereof, and all persons shall be thereby charged with notice thereof, and of the rights of the mortgagee, his assignee or representative thereunder," etc. The effect given to the full record of mortgages, as referred to in the preceding article, is prescribed by article 4334, Sayles' Civ. St., in this language: "Every conveyance, covenant, agreement, deed, deed of trust or mortgage in this chapter mentioned, which shall be acknowledged, proved or certified according to law, and delivered to the clerk of the proper court to be...
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