Crescent Ins. Co. v. W. R. Camp

• Decision Date: 23 October 1885
• Docket Number: Case No. 1871.
• Citation: Crescent Ins. Co. v. Camp, 64 Tex. 521 (Tex. 1885)
• Parties: CRESCENT INS. CO. v. W. R. CAMP ET AL.
• Court: Texas Supreme Court

64 Tex. 521

CRESCENT INS. CO.

v.W. R. CAMP ET AL.

Case No. 1871.

Supreme Court of Texas.

Oct. 23, 1885.

APPEAL from Cherokee.Tried below before the Hon. Edwin Hobby.

Suit was brought by James I. Perkins and W. R. Camp, trustees of creditors of N. Ellenstein, against the Crescent Insurance Company, for the value of a policy of insurance for $1,500, issued to N. Ellenstein, on a stock of general merchandise, situate in the town of Alto, Texas, and which was destroyed by fire on the 18th day of March, 1883.

The policy was dated September 13, 1882.

The defendant pleaded a general demurrer and general denial, and also special exception to the effect that said petition was defective in that it failed to allege a compliance with certain conditions precedent provided for under the terms and conditions of the policy, and special pleas to the effect:

1st.That Ellenstein, neither at the time of the issuance of the policy nor the date of the fire, was the entire, sole and unconditional owner of the property insured, as was expressly provided that he should be, under the terms and conditions of the policy, but that the property, or a large portion thereof, belonged to the estate of M. Guensbery, deceased, his former partner, and was in his possession as administrator.That he concealed the nature of his interest from the company, and thereby fraudulently induced it to issue the policy to him.That by reason of the above facts the policy was, according to its provisions, null and void.

2d.That defendant did not fail to have an adjustment of said loss, but that any delay, or failure or neglect to have the same adjusted was at the special request of the said Ellenstein.

3d.That the fire was not the result of some accident or casualty to the said N. Ellenstein unknown.

4th.That under the terms and conditions of the policy, it had the right to demand, and, on the 28th day of September, 1883, did demand, that the said Ellenstein produce his books of account and other vouchers, and all original bills and invoices (or duly certified copies where the originals had been lost) of the goods and property alleged to have been destroyed at the office of the company, within a reasonable time, and permit extracts and copies to be made thereof; and that he also be present and submit to an examination under oath, and subscribe the same when reduced to writing, and that he failed, neglected and refused to produce his said books, etc., or submit to said examination, and that by reason of said failures and refusals he was not entitled to recover.

To that answer plaintiffs filed their first supplemental petition, containing exceptions to and motion to strike out defendant's first and second special pleas; a general denial, and special defense to the effect:

1st.That if plaintiff had failed to comply with the notice as alleged by defendant, that such failure was caused by the defendant, through its authorized agents, in ignoring the repeated demands of plaintiffs to adjust and pay said policy, and their entire repudiation of the same; and,

2d.That if they failed to make proofs of loss, as required by said policy, that such failure was caused by the repudiation and denial of liability on said policy by defendant, and its refusal to pay said policy or adjust said loss.

The court overruled the exceptions, general and special, of both parties.Verdict and judgment in favor of plaintiffs for the sum of $1,305.

The court refused to give in charge the following: “The defendant asks the court to charge the jury: The policy sued on in this case provides that unless the insured thereunder was the sole, unconditional and entire owner of the property insured for his own use and benefit, that the same should be null and void.The court instructs you that, if you find from the evidence that said Ellenstein was not such owner at the time of the issuance of the policy, or at the destruction of the property, then you should find for the defendant.”

Among other things, the court charged as follows: “You are instructed, with reference to the question or issue of the interest of the assured, that the representation of ownership embraces any insurable interest, and may be made by one who may fairly be said to have a reasonable expectation of deriving pecuniary advantage from the preservation of the subject-matter of insurance, whether such advantage inure to him personally, or as the representative of the rights of another.So an administrator has an insurable interest in the property of the intestate; so a surviving partner, assuming the liabilities of a firm, may insure the property as his.”Whitaker & Bonner and J. M. Duncan, for appellant, that compliance with conditions of the policy should have been set forth, cited: E. T. Ins. Co. v. Dyches, 56 Tex., 570; May on Ins., § 460;Wood on Ins., p. 825; and authorities cited, pp. 691-2(sec. 411), p. 145 et seq.

That proofs of loss should have been furnished in the manner and time stipulated in the policy, they cited: Wood on FireIns., § 411, p. 691, pp. 145, 825, and authorities cited, § 436, p. 757; May on Ins., § 460;E. T. Ins. Co. v. Dyches, 56 Tex., 565.

On waiver of conditions, they cited: East Texas Fire Ins. Co. v. Coffee, 61 Tex., 287; May on Ins., secs. 468-471; Wood on Ins., secs. 417,419-421.

That the assured was not the sole owner of the goods, and could not recover, they cited: May on Ins., sec. 285; Wood on Ins., sec. 277 et seq., andsec. 283.

McCoy & Camp, for appellees.

ROBERTSON, ASSOCIATE JUSTICE.

This suit was brought by appellees upon a policy of insurance against fire, issued by appellant to N. Ellenstein, for $1,500, upon a stock of merchandise in store at Alto, Texas.The insured property was consumed by fire on the night of March 17, 1883, and the policy in suit was transferred by Ellenstein to Wernstein & Bro., and by them to the appellees, and these transfers were indorsed on the back of the policy, which was made an exhibit to the plaintiffs' petition.

As the genuineness of these transfers was not put in issue by a plea under oath, the court below did not err in admitting them in evidence over appellant's objection without proof of their execution.Revised Statutes, art. 271.

The contract of insurance declared upon required the assured to give immediate notice, in writing, to the company of any loss or damage by fire sustained by him, and “as soon thereafter as possible” to furnish proof of loss in the manner particularly specified in the policy, and the loss is made payable “sixty days after such notice and proof” of loss “shall have been made by the assured, and received at the office of the company in New Orleans.”There was no allegation in the plaintiffs' petition that such proof had been made, nor directly that it had been waived; but it was averred that the company was fully advised of the circumstances attending the fire as far as they could be ascertained, and had refused to adjust the loss, and had refused to recognize the contract.Appellant excepted to the petition specially on the ground that there was no averment of proof of loss, nor allegation that the proof had been waived, and the exception was overruled by the court.The condition of the policy respecting the proof of loss was not mentioned in the petition, and it is only inferentially that the general averments referred to can be made to apply at all to a waiver of that condition.This condition is inserted for the benefit of the company, and intended to enable it to determine in the first instance upon the representations of the assured, required to be made in good faith by penalties prescribed in the contract, the existence and extent of the liability incurred by...