Campbell v. Allstate Ins. Co.
| Decision Date | 02 February 1962 |
| Docket Number | No. 3661,3661 |
| Citation | 354 S.W.2d 235 |
| Parties | Rolla CAMPBELL et ux., Appellants, v. ALLSTATE INSURANCE COMPANY, Appellee. |
| Court | Texas Court of Appeals |
Davis, Phelps & Liles, Houston, for appellants.
Talbert, Giessel, Cutherell & Barnett, Houston, for appellee.
This is a garnishment proceeding by Rolla Campbell and wife, Rana Compbell against Allstate Insurance Company, a corporation, based upon a final judgment obtained by plaintiffs against Alfred B. Thyssen in the sum of $4,000.00.
Plaintiffs alleged that Thyssen purchased a policy of automobile liability insurance from defendant, which was in full force and effect at the time of the accident made the basis of plaintiff's original suit against Thyssen; that the defendant Garnishee was obligated by virtue of the said policy of insurance to defend said suit and to pay on behalf of Thyssen the judgment rendered in plaintiff's favor against him; that plaintiffs made demand upon defendant insurance company for payment of said judgment, interest and costs, but defendant wrongfully refused to pay same and plaintiffs sought to recover therefor. Allstate Insurance Company denied that it was indebted to Thyssen or that it had in its hands any effects belonging to him at any time material to this suit. The trial was before the court without a jury and judgment was rendered for the defendant Allstate Insurance Company. Plaintiffs have appealed.
It is undisputed that appellee insurance company did issue a policy of automobile liability insurance to Thyssen. The policy contained a contractual warranty substantially as follows: '--, during the past three years no insurer has cancelled insurance, issued to the named insured, similar to that afforded hereunder.' The policy also provided that: 'By acceptance of this policy, the insured agrees that the statements in the declarations are his agreements and representations, that this policy is issued in reliance upon the truth of such representations and that this policy embodies all agreements existing between himself and the company or any of its agents relating to this insurance.' The evidence shows that a similar policy of insurance had been previously issued to Thyseen by the Houston Fire & Casualty Company, and that was cancelled within the time period of the policy provision.
It is stipulated that the sole issue on this appeal is whether or not under the circumstances of the case appellee insurance company waived its right of forfeiture or was estopped to assert such right. Appellants urge that appellee has waived and is estopped to assert its defense of forfeiture. The facts as found by the court were in substance that the agent of appellee who took Thyssen's application for the insurance policy was advised by Thyssen of the facts surrounding the cancellation of the prior policy; that the agent without the knowledge or authority of Thyssen made an erroneous answer to the inquiry in the application concerning whether Thyssen had had a similar policy cancelled during the prior three year period. Notwithstanding such knowledge on the part of the agent the company issued the policy to Thyssen. It is contended by appellants that the knowledge of the agent was imputed to the company as a matter of law and that the company is bound thereby.
The rule which we consider controlling in this case is stated in 21-B Tex.Jur., 421 as follows:
'It is the rule that if the insured gives full, true and correct answers to an agent authorized to take written applications for insurance, relying upon the skill and good faith of...
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RiverStone Corp. Capital v. Frank Swingle & Assocs.
...agent's mistaken or wrongful act.”); 45 Tex. Jur. 3d Insurance Contracts and Coverage § 350 (2021) (citing Campbell and explaining that, in Campbell, the insurer not allowed to assert the defense of forfeiture against an insured who gave accurate information because it was the agent who fal......