Austin Fire Ins. Co. v. Polemanakos

• Decision Date: 15 January 1919
• Docket Number: (No. 24-2644.)
• Citation: 207 S.W. 922
• Parties: AUSTIN FIRE INS. CO. v. POLEMANAKOS.
• Court: Texas Supreme Court

207 S.W. 922

AUSTIN FIRE INS. CO. v. POLEMANAKOS.

(No. 24-2644.)

Commission of Appeals of Texas, Section B.

January 15, 1919.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Action by A. D. Polemanakos against the Austin Fire Insurance Company. A judgment for defendant was reversed by the Court of Civil Appeals (160 S. W. 1134), and defendant brings error. Reversed as recommended by the Commission of Appeals.

The facts necessary to a proper understanding of our conclusions in this case are: This is a suit by the defendant in error, A. D. Polemanakos, against the Austin Fire Insurance Company to recover upon two fire insurance policies issued by said insurance company to Polemanakos on a certain building situated in Houston, Harris county, Tex. Said policies were for $1,000 and $1,500, respectively.

In addition to the insurance of $2,500 above referred to said Polemanakos had another policy for $2,500 in another company. All these policies were in force on January 18, 1910, and on that day the plaintiff in error telegraphed its Houston agent to cancel the policies held by Polemanakos. The agent called the insured on the telephone and a conversation occurred between them. As this is an important feature of the case, we will set out the version of the conversation testified to by Polemanakos:

"On Saturday before the fire, Saturday being 18th of March, 1911. I received a telephone communication from Mr. John R. Young, this gentleman that sits over here, the agent of the fire insurance company, in which he told me that the Austin Fire Insurance Company had telegraphed to him directing him to cancel and take up the two policies of the Austin Fire Insurance Company which I held on that building. That is exactly what he told me; and those two policies that he had reference to were the same two policies I am suing on here. At the time he communicated with me the fact that the Austin Fire Insurance Company demanded the surrender and cancellation of my two policies I was in my home in Houston Heights. Mr. Young, I think, was in his office down in the city of Houston at that time. In that conversation I never asked him for any premium to be given me. I never said anything to him about the policies not being canceled before I got the premium. I didn't say nothing. Mr. Young did the talking. I just sat at the other end. That was all that was necessary. In this talk with Mr. Young I asked him to get me some other policies in place of the two he was canceling, I think so, and he told me he couldn't do it. He didn't tell me that he had applied to Mr. Raphael for policies on there and couldn't get them issued. He never mentioned any names, but he did tell me that he wasn't able to get any policies on my property. Told me he wasn't able to get them. I did not ask him to apply to any other agent. I don't think I told him to apply to Mr. Dumble."

"Q. After he told you he wasn't able to procure any policies to be issued on that property for you in place of the Austin Fire Insurance Company's policies which he was canceling, did you not tell him `All right,' that you would look after it yourself then? A. I told him `All right,' and that was all to it. Q. That you would look to getting other insurance? A. I said `All right.' I didn't tell him I would see to the getting of insurance in the place of the two Austin fire insurance policies. I told him `All right,' I would see about it; that is, I would see whether I could get the insurance or not. At that time I held policies, one in the Rochester-German Insurance Company for $1,000 and in another company for $1,500 and these two policies I sue on here by the Austin Fire Insurance Company, making $2,500 more. There had been no increase in the value of my buildings that day. I had not contemplated or intended increasing my insurance above $5,000. It was my desire simply to carry $5,000 insurance on the property. That is what I usually had."

"Q. When you asked him to get you insurance, you asked Mr. Young to get you insurance to take the place of these Austin fire insurance policies that he telephoned you about canceling, did you not? A. I guess so as I didn't want to cancel the policies to get policies. That was my purpose, idea, and intention. When he told me he couldn't get any written for me, and I told him I would see about it myself, I had the same purpose and intention in mind; that was the same thing, and I didn't have any other purpose or intention. When Mr. Young telephoned me the Austin Fire Insurance Company had directed him to cancel the two policies I didn't offer any objection to him. After I had had my talk with Mr. Young on Saturday evening I called up Mr. Dumble and asked him if he couldn't issue me some policies on this property to take the place of the ones which the Austin Fire Insurance Company canceled, and Mr. Dumble told me he didn't have any companies in his office that he could write any insurance on that building in at that time without submitting it to them, and I told him I wanted my insurance for that day, for Saturday. I think he told me something like he wouldn't be able to hear from the companies about whether they would carry the policies or not before the Tuesday following. I am not sure about that. After he told me that I rang off, and I then called up the office of Torrey & Co., insurance agents at Houston, and told them the Austin Fire Insurance Company had canceled my two policies and I wanted to know whether they could issue me $2,500 insurance to take the place of it. Q. Mr. Torrey, this gentleman sitting over here, told you he would furnish $2,500 insurance to take effect that day on that property to take the place of these Austin policies? A. Mr. Torrey never mentioned the Austin policies. Q. The ones you spoke to him about? A. I spoke to him. Q. To take the place of that? A. Yes, sir; that was Saturday. I didn't pay him any premiums at that time, and I had not at that time carried my policies in the Austin Fire Insurance Company which Mr. Young had demanded the surrender of to him. I don't know how I could carry it to him. It was nighttime. I guess it was dark."

This witness further testified that the insurance requested was written by Torrey & Co. and after the fire, which occurred the following night, was paid by the companies represented by Torrey & Co.

The premiums on the Austin Fire Insurance Company policies had been paid in advance, and up to the time of the fire the policies had not been surrendered, nor had the unearned premium been returned. After the fire the insured, Polemanakos, collected the $2,500 covered by the two policies which he had in the Rochester-German Insurance Company and the International Fire Insurance Company and the $2,500 policies written by Torrey & Co. on the day before the fire. He also gave the Austin Fire Insurance Company notice of the fire and furnished proofs of loss. The adjuster of the Austin Fire Insurance Company, after the company had received notice of the fire, wrote Polemanakos the following letter:

"R. W. Mayo, Adjuster of Fire Losses, 358 Wilson Building.

                "Phones: Main 5945
                        "Haskel 851
                         "Houston, Texas, March 25, 1911
                

"Mr. A. D. Polemanakos, Houston, Texas — Dear Sir: The Austin Fire Insurance Company received through its agents at Houston, Texas March 20, 1911, a notice of a fire which occurred on the same date, destroying or damaging building known as No. 519 Texas avenue. This notice further states that you hold policy No. 517 for $1,000.00 and policy No. 518 for $1,500.00 on this property. The Austin Fire Insurance Company does not know whether or not you are claiming liability against the company on account of these policies, but it assumes that you have given this notice in compliance with line No. 74 of such policies, if you hold them. In the event you are claiming any liability on the part of the Austin Fire Insurance Company on account of these policies, you are advised that the Austin Fire Insurance Company requests of you an examination, under oath, in reference thereto. You are advised that I shall be glad to hold this examination at the office of Messrs. Young & Felker, Houston, Texas, at 4:00 p. m., March 25, 1911, unless some more convenient time and place will better suit you. Upon being advised in this regard, I shall be glad to conform to your wishes.

"You are requested to have and produce at said examination all policies of insurance covering this property, or any part thereof, and any and all evidence that you may have bearing on the value and ownership of said property. The examination referred to is provided for in the policies which you claim to hold, more especially lines 87 to 91, inclusive. You are advised that the Austin Fire Insurance Company in requesting this examination, and in conducting same, does not thereby waive any of the rights that it may have under the above-mentioned policies, nor any of the terms or conditions of said policies, nor does it thereby admit a liability on account of said policies, nor a forfeiture of said policies, if such exists, nor does it intend thereby so to do. Please advise me, at the earliest possible moment, if the time and place mentioned herein will suit your convenience.

"You can reach me at the office of Messrs. Young & Felker. Yours truly, [Signed] R. W. Mayo, Adjuster for Austin Fire Ins. Co."

Polemanakos, as requested in the letter, appeared at the place agreed upon by the parties and submitted to an oral examination.

The insurance company refused to pay the loss upon the ground that the policy had been canceled prior to the fire and this suit was brought by Polemanakos to recover on the two policies. The...