Canfield v. Newman

• Decision Date: 23 October 1924
• Docket Number: (No. 1655.)
• Citation: 265 S.W. 1052
• Parties: CANFIELD et al. v. NEWMAN et al.
• Court: Texas Court of Appeals

265 S.W. 1052

CANFIELD et al. v. NEWMAN et al.

(No. 1655.)

Court of Civil Appeals of Texas. El Paso.

October 23, 1924.

Rehearing Denied November 13, 1924.

Appeal from El Paso County Court, at Law; J. M. Deaver, Judge.

Action by Joe Canfield and others against C. M. Newman and others. From judgment of dismissal, plaintiffs appeal. Reversed and remanded.

Julian P. Harrison and McKenzie & Loose, all of El Paso, for appellants.

S. P. Weisiger, Paul D. Thomas, and C. L. Galloway, all of El Paso, for appellees.

WALTHALL, J.

Joe Canfield and wife, Kate Canfield, N. F. Adams and wife, Mollie Montgomery Adams, and Louis A. Scott, as administrator of the estate of Nettie Castile, deceased, brought this suit against C. M. Newman, C. J. Maple, and Dexter R. Maple, copartners, doing an insurance business under the firm name of Newman Investment Company, and Superior Fire Insurance Company of Pittsburgh Pa., a corporation, to recover against the insurance company, and against Newman, Maple, and Maple.

The court sustained general and special exceptions to the petition and misjoinder of parties plaintiffs, and the plaintiffs refusing to amend, the suit was dismissed, and plaintiffs appealed. The petition is lengthy, and, without quoting it at length, we will state briefly what seems to us to be issuable facts pleaded.

On the 6th day of October, 1920, plaintiffs N. F. Adams and his wife, Mollie Montgomery Adams, being the owners of the lots and dwelling house thereon and the furnishings therein, and here involved, by deed of that date and bill of sale, conveyed said property to Nettie Castile, in part consideration for which Nettie Castile executed her promissory note in the sum of $2,025, bearing interest, and providing for the payment of attorney fees in case of default, payable to Mollie Montgomery Adams, payable in monthly installments of $35, a vendor's lien being retained and expressed in the deed of conveyance and a chattel mortgage given on the personal effects, to secure the payment of said note, and a further provision that Nettie Castile should keep said dwelling house and personal property insured against loss by fire for the benefit of Mollie Montgomery Adams as her interest may appear, the amount of insurance to be not less than $1,500 on the dwelling house, and $250 on the personal effects, and further providing that on failure to procure such insurance the said note should mature; that on the 8th day of December, 1921, Nettie Castile died intestate, leaving as her sole heirs her daughter, plaintiff Kate Canfield, and her son, Hilbert Castile; that in November, 1922, plaintiff Louis A. Scott was duly appointed and qualified as administrator of the estate of Nettie Castile, deceased, and that he is still qualified and acting as administrator of said estate now being administered in the county court of El Paso county, Tex.; that, prior to her death, Nettie Castile had paid upon said note the sum of $490; that, subsequent to the death of Nettie Castile, and prior to the appointment and qualification of Louis A. Scott as administrator of said estate, Kate Canfield assumed the payments of said promissory note to Mollie Montgomery Adams and the covenants as to the insurance mentioned, and took possession and occupied said dwelling house, and paid upon said note the installments as same became due, aggregating the amount of $492; that subsequent to the appointment and qualification of said administrator, the time not stated, Mollie Montgomery Adams filed said note with said administrator as a claim against said estate, and same was by said administrator allowed, and on March 31, 1923, paid thereon the sum of $500; that on the 3d day of April, 1923, said administrator with the approval of the probate court conveyed to Mollie Montgomery Adams the lots of land upon which the dwelling house had stood, for the sum of $400, and credited same upon said note, leaving a balance of principal on said note of $704; that the petition alleges the employment of attorneys to collect the amount due upon the note, and the agreement to pay the 10 per cent. as attorney fees alleged to be a reasonable fee; that on the 17th of February, 1922, defendant insurance company, acting through its agents, Newman, Maple, and Maple, issued to Kate Canfield the insurance policy described, and sued upon insuring the household and kitchen furniture against loss by fire in the sum of $750; that, subsequent thereto, Mollie Montgomery Adams demanded of Kate Canfield that said dwelling house be insured as provided by the covenants in said deed, bill of sale, and mortgage, as her interest may appear; that thereupon her agent, naming him, and acting also as the agent of N. F. and Mollie Montgomery Adams, took the paid issued policy to Newman, Maple, and Maple, alleged to be the authorized agents of the insurance company, who, for a valuable consideration paid, verbally agreed with the said agent to insure said dwelling house against loss by fire in the sum of $750 in favor of Mollie Montgomery Adams as her interest may appear, and alleged the verbal modification of said policy as agreed, so as to insure said dwelling instead of said furnishings; that thereupon said agent surrendered to Newman, Maple, and Maple said policy on the household furnishings who agreed to and did modify and reform said policy as agreed, and so issued same. Plaintiffs pleaded in the alternative that, if mistaken as to the agency of Newman, Maple, and Maple as alleged, then they allege that Newman, Maple, and Maple so represented themselves as agents of the insurance company, and acted within the apparent scope of such, and thereby impliedly warranted such authority; that the insurance company, with full knowledge of the facts, ratified the acts of said agents and accepted the premiums, etc., and are now estopped to deny liability upon said policy as reformed.

Plaintiffs pray that N. F. and Mollie Montgomery Adams have judgment against appellees for the balance of the principal, interest, and attorney fees due upon said note, and that Joe and Kate Canfield have judgment against appellees for any surplus due upon said modified policy.

Opinion.

As stated above, the trial court sustained the general and several special exceptions to the petition, and the several propositions presented question the correctness of the court's ruling on the exceptions. Appellants' first, second, third, and thirteenth propositions claim error in sustaining the general exceptions of appellees. The suggestion of appellees as sustaining the court's ruling is: That, at the time of the issuance of the policy, and at the time of the institution of the suit, appellants had no interest in the property of the estate insured, and for that reason they had no right to be parties in the suit. We do not concur in the suggestion that the facts show that appellants had no insurable interest in the property destroyed by fire.

It is sufficiently made to appear that Adams and wife owned the property sold by them to Nettie Castile, and that in disposing of same they not only retained liens on the property, but required that the property be insured in their favor against loss by fire. True, Nettie Castile did not carry out said covenant, but Kate Canfield in inheriting the property took it charged with the same obligation as to the unpaid debts on the property and the duty to insure against loss by fire, and assumed to discharge same. We think that, while Kate Canfield took less than the sole fee in the property, the interest she had, being an undivided one-half interest, and that charged with the unpaid balance of the note and the covenant to insure against loss by fire, the interest she had was an insurable interest. We think also that the interest retained in the property by Mollie Montgomery Adams, the amounts being fixed and definite, was an insurable interest. The insurance company would be charged with the knowledge that it was insuring whatever interest appellants had in the property.

It is well established in this state that a mere equitable title or other qualified property in the thing insured, though not the fee may be protected by insurance. As said by our Supreme Court in East Texas Fire Ins. Co. v. Crawford (Tex. Sup.) 16 S. W. 1068, quoting with approval from Hough v. Insurance Co., 29 Conn. 20, 76 Am. Dec. 581, where the assured had only an equitable interest under a parol contract of purchase, it is an interest, not a title, of which the conditions of insurance speak, and the terms "interest" and "title" are not synonymous. See, also, Springfield Fire & Marine Ins. Co. v. Republic Ins. Co. (Tex. Civ. App.) 262 S. W. 814. We are now speaking of who may insure, and what interests may be insured, and not the parties to the suit.

We think the...