Continental Fire Ass'n v. Wingfield
| Decision Date | 08 April 1903 |
| Citation | 73 S.W. 847 |
| Parties | CONTINENTAL FIRE ASS'N v. WINGFIELD. |
| Court | Texas Court of Appeals |
Action by A. N. Wingfield against the Continental Fire Association. Judgment for plaintiff, and defendant brings error. Affirmed.
W. B. Moses, for plaintiff in error. Geo. A. Bell and Gibson & Bryant, for defendant in error.
This suit was filed in the district court of Freestone county, Tex., on the 13th day of June, 1901, by A. N. Wingfield against the Continental Fire Association, a corporation of Ft. Worth, Tex., to recover on fire insurance policy No. 52,140, issued by said fire association to said Wingfield on the 13th day of October, 1900, insuring for one year from said date, against loss by fire, in the sum of $1,500, two buildings situated in the town of Wortham, Tex., one of which was a two-story frame building, used as a livery stable and barn, and the other a one-story frame building, used as a feed store. Said buildings were destroyed by fire on the 21st day of January, 1901, and were a total loss. Defendant answered by general denial and by special answers setting up the avoidance of the policy by reason of the breach of several clauses of the same as follows: (1) Because, in his application for the policy, plaintiff disclosed only one policy of concurrent insurance on the property insured —that for $1,000 in the Home Mutual Company of Austin—when in fact he had also a policy for $1,000 in the State Fire Company of Waco, which, with defendant's policy for $1,500, made the insurance on said property $3,500, when it was worth, by plaintiff's valuation, only $3,000. (2) Because the insured was not the sole and unconditional owner of the property, and because the interest of the insured was not correctly stated in the application, it showing the title to be in the wife of plaintiff, when in fact it was in said wife and her minor children by a former marriage. (3) That plaintiff had no insurable interest in the property, and, to permit him to recover, he must be the owner of, or have some insurable interest in, the property. (4) That the policy contract provided that no change of the contract or waiver of the terms thereof should be claimed by the insured, unless in writing, and attached to or indorsed on the policy. Defendant tendered to plaintiff, and paid into court, the amount of the premium paid and interest. Plaintiff, by supplemental petition, denied generally, and pleaded waiver of the clauses and warranties set...
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