Connecticut Fire Ins. Co. v. Fields

• Decision Date: 04 January 1922
• Docket Number: (No. 1878.)
• Citation: 236 S.W. 790
• Parties: CONNECTICUT FIRE INS. CO. et al. v. FIELDS.
• Court: Texas Court of Appeals

Page 790

236 S.W. 790

CONNECTICUT FIRE INS. CO. et al. v. FIELDS.

(No. 1878.)

Court of Civil Appeals of Texas. Amarillo.

January 4, 1922.

Appeal from District Court, Carson County; W. R. Ewing, Judge.

Action by J. W. Fields against the Connecticut Fire Insurance Company and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Thompson, Knight, Baker & Harris and Will C. Thompson, all of Dallas, for appellants.

Chas. C. Cook, of Pampa, for appellee.

HALL, J.

The defendant in error, J. W. Fields, as plaintiff below, filed separate suits against the Connecticut Fire Insurance Company and the Northern Assurance Company, joining in each suit G. G. Ordway and C. B. Hedrick. By agreement these suits were consolidated and have been tried and appealed as one action. As against each defendant plaintiff alleged that on July 7, 1919, he owned certain lands, which he described, and the wheat situated thereon, a part of which was standing in the fields, and part, having been cut, was in stacks and shocks; that, being desirous of insuring it, he, for that purpose, applied to the defendant Hedrick for fire insurance upon all of the wheat in its then condition, and was informed that Hedrick was an insurance agent and would insure the wheat as then situated in the sum of $26,400 as to one section and $10,000 as to another section; that plaintiff then paid Hedrick on that date the entire premium due for insurance in that amount for a period of 30 days; that Hedrick informed the plaintiff that said insurance for the amount mentioned would go into effect immediately for the period named; that Hedrick then lived at White Deer, in Carson county, Tex., where section 13, which was a part of the land involved, was situated; plaintiff explained to Hedrick that a large part of the wheat was standing uncut, and that it would have to be insured while standing in the field; on this date Hedrick had an arrangement and contract with Ordway, who was engaged in the insurance business in Amarillo, as agent for various companies, by the terms of which Ordway was to issue policies on orders from Hedrick and had agreed to issue policies on grain cut or uncut, in granaries, bins, threshed or unthreshed, or while standing in the field. On the date mentioned, after plaintiff had paid the premium for the whole amount of insurance to Hedrick, the said Hedrick phoned Ordway at Amarillo and instructed him to issue a fire policy on plaintiff's wheat in the aggregate of $36,400 covering any part of section 13, at which time it was understood between them that plaintiff's wheat on section 13 was partially standing in the field and partially cut and in shocks; that on July 9th defendant Ordway issued four policies covering the wheat on section 13, one for $6,400 in the Standard Insurance Company, one for $1,000 in the International, and one for $5,000 in each of defendant companies; Ordway on that date mailed them to Hedrick at White Deer, and Hedrick paid Ordway the premiums due on the policies on July 7th; that Hedrick received the policies in White Deer about 2 p. m. July 9th, but did not open the envelope containing them until July 11th; on July 10th about 2 o'clock p. m. the wheat standing on section 13 was burned and 60 acres of it was destroyed, resulting in a loss of $4,061.28; that thereafter, on July 11th, Hedrick opened the letter from Ordway, and for the first time learned that the policies had not been issued as agreed, since each of them covered grain in buildings or in stacks, but did not cover same while cut or uncut; that on said date Hedrick communicated with Ordway, informing him that the policies were incorrectly written, which was admitted by Ordway, and upon the latter's direction they were returned to him to be corrected so as to cover standing grain; thereafter Ordway returned the Standard and International policies, amended so as to cover standing grain, but delivered the defendant companies' policies to them; that at all the times herein mentioned Ordway was the duly authorized agent of each of the companies; that the loss by fire to the wheat on section 13 was $4,061.28, the total insurance being $26,400, so that each of the defendant companies owed the plaintiff $769.18; on the 7th of July Hedrick paid Ordway the premium due on each of the four policies, and plaintiff had at no time agreed that the same should be canceled; plaintiff gave notice of loss, and it was agreed between Hedrick and Ordway that the policies should be written so as to cover standing wheat still uncut, but, due to carelessness on the part of Ordway, the policies were written so as to cover grain in buildings or stacks only, and, if they were not so written, then they were fraudulently written, with the intention and for the purpose of defrauding the recovery by plaintiff in event of fire; at the time the policies were applied for Hedrick and Ordway knew that the wheat on section 13 was standing and uncut, and that the plaintiff desired insurance upon same in that condition; that plaintiff has complied with the stipulations in the policies and is entitled to his debt.

Each of the companies filed a like answer, containing general and special exceptions, general denial, and specially alleging that its policy was for the sum of $5,000 for the term of one month from July 9, 1919, on grain of all kinds, including sacks and bags, owned and held by the assured in trust or on commission or on joint account of others, or held, but not delivered, only while contained in buildings or stacks on farm and situated on section 13, block 7, Carson county, Tex. They further specially set out two paragraphs of the grain record warranty clause and stated that a 100 per cent. coinsurance clause was contained in the policies, and alleged that the loss by fire occurred to standing grain, and did not occur to grain in the condition described in the policy, and that the policy never took effect as to any such property; that, if mistaken in this, it still would not be liable on account of the breach of the record warranty clause contained in the policy. It specially denied the allegations of fraud and mistake, and alleged that, if plaintiff had any conversation with any person which contemplated the issuance of a written policy in the usual form, its policy, if written in the usual form, does not cover any such property nor loss as is set out by the plaintiff, and should not be reformed. Ordway answered by general demurrer and general denial, and denied the allegations of fraud and mistake in the issuance of the policies.

The plaintiff, by supplemental petition, specially alleged that the policies of the defendant were never delivered to him, notwithstanding he paid the premium; that the fire occurred on the 10th day of July, before Hedrick received the policies; that plaintiff had never received them, and does not know their contents; that he has complied with all their conditions and has given the required notice of loss; that he kept a true and correct record of the wheat on section 13 and a set of books, as required by the policy; that, if he is mistaken in this, then he kept a record of the number of acres on section 13, and a record of the wheat sold off of the land before the fire, a record of the number of acres destroyed by the fire, a record of the average number of bushels raised on the other land on this section contiguous to the destroyed area, and also kept a record of the average yield on section 13 and of the market value and price per bushel of the wheat sold off of section 13, and therefore has substantially complied with the requirements of the record clause; that at the time of the fire the wheat was not graded, but was standing and uncut, and in its then condition it was not capable of being graded; that the defendant had denied liability, and, because Hedrick and Ordway knew that the grain was standing and uncut and in shocks, defendant is estopped to deny liability on account of such wheat being uncut.

Plaintiff also filed a trial amendment alleging that on July 7, 1919, and at all times mentioned in plaintiff's petition, Hedrick was the agent of the defendant Connecticut Fire Insurance Company; that said insurance company ratified and adopted the acts of the said defendant Hedrick; that it had held Hedrick out as its agent and clothed him with authority, both express and implied, to solicit fire insurance for it; that it ratified the acts and conduct of said Hedrick in every particular and received the premiums which had been paid Hedrick on the policies.

There was a peremptory instruction in favor of Ordway. No charge whatever was given with reference to Hedrick. In response to special interrogatories the jury found: (1) That Ordway agreed with Hedrick that the former would write the insurance policies for plaintiff to cover both cut and uncut grain in the field; (2) that the total...