Drew v. American Automobile Ins. Co.

• Court: Texas Court of Appeals
• Writing for the Court: Buck
• Citation: Drew v. American Automobile Ins. Co., 207 S.W. 547 (Tex. App. 1918)
• Decision Date: 02 November 1918
• Docket Number: (No. 8908.)
• Parties: DREW v. AMERICAN AUTOMOBILE INS. CO.

Page 547

207 S.W. 547

DREW v. AMERICAN AUTOMOBILE INS. CO.

(No. 8908.)

Court of Civil Appeals of Texas. Ft. Worth.

November 2, 1918.

Rehearing Denied December 7, 1918.

Appeal from District Court, Tarrant County; Bruce Young, Judge.

Action by Mrs. S. M. Drew, administratrix of the estate of Mrs. Willie Mae Jackson, against the American Automobile Insurance Company. From an instructed verdict for defendant, plaintiff appeals. Reversed and remanded.

Simpson & Estes and A. L. Moore, all of Ft. Worth, for appellant.

J. W. Kearby, of Ft. Worth, for appellee.

BUCK, J.

Mrs. S. M. Drew, administratrix of the estate of Mrs. Willie Mae Jackson, filed suit against the American Automobile Insurance Company of St. Louis for recovery under a policy issued on an automobile owned by E. A. Jackson, the husband of Mrs. Willie Mae Jackson. Plaintiff alleged that she was the duly appointed administratrix of the estate of Mrs. Jackson; that E. A. Jackson died April 24, 1916, and that his wife, Mrs. Willie Mae Jackson, died subsequent to his death; that E. A. Jackson died intestate, and that his wife was his sole heir, and that subsequent to the wife's death plaintiff was appointed administratrix of her estate; that on March 29, 1916, the defendant issued to E. A. Jackson its certain policy of insurance, providing, among other things, insurance against loss to or damage of the automobile by collision, and that said policy was in full force and effect in all of its provisions at the time of E. A. Jackson's death; that E. A. Jackson was killed on said April 24, 1916, by reason of being run into and over by a railroad train, and that in said accident the automobile, in which he and his wife were riding and upon which the policy had been issued, was destroyed. She further alleged said automobile, at the time of said collision and destruction, was of the reasonable value of $1,500, and was at said time owned by E. A. Jackson, and that all the conditions required by the terms of said policy had been duly performed; that thereupon defendant became liable to plaintiff for the value of the automobile so destroyed, and had refused to pay for same.

Defendant answered by general demurrer; and further pleaded that, while it had issued the policy upon the automobile in question, and said policy contained a provision of insurance against loss by reason of a collision, yet that subsequent to the date of its issuance E. A. Jackson had declined to accept the policy with the clause and provision as to the insurance against loss or damage by collision, and had requested that that feature of the policy be eliminated and canceled, and that he be allowed credit for the amount of the premium charged for this particular feature of the insurance, to wit, $67; that thereupon the defendant did cancel said feature and provision of the policy, and did give said Jackson credit for the $67 charged therefor, and that the "rider" providing for the insurance against loss or damage by collision was removed from the policy by Jackson's agent, and returned to defendant's agents; that both the defendant's agent, C. H. Walton, and the insured and his agent, believed and understood that the "rider," removed and separated from the policy, contained the only provision as to insurance against collision, and that it was the intention of both the insurer and the insured that the feature of insurance against collision should be canceled, and that the defendant company would not be liable for any loss suffered by said Jackson under the collision feature of said policy. It was further alleged that the provision as to insurance against loss or damage by collision, contained in the regular form of the policy, and not included in the "rider" which had been attached, at the time of issuance, to said policy and thereafter removed, was overlooked by both the insured and his agent, and the insurer's agents, and all parties understood and believed that the written contract, as it appeared after the removal of the "rider," contained no collision insurance; that the defendant ratified and affirmed the action of its agents upon this understanding and belief.

Plaintiff, in a supplemental petition, denied the allegations made in defendant's answer as to the elimination or the cancellation of the collision insurance feature.

Upon trial plaintiff introduced evidence to show that the automobile had been destroyed by reason of a collision with a railroad train; that it was a complete wreck; that it was of the value immediately before this destruction of $1,350 to $1,400; that after the collision it was mere "junk"; that E. A. Jackson and his wife were both killed by the accident, Mr. Jackson dying shortly before his wife. It was agreed that Mrs. Drew was the duly appointed, qualified, and acting administratrix of the estate of Mrs. Willie Mae Jackson, deceased, wife of E. A. Jackson, deceased. It was shown that said administratrix was custodian of the books, insurance policies, and other records belonging to the estate, and that the policy as sued upon contained a provision that, in case of loss or damage to the automobile by reason of a collision, the measure of damages recoverable by the insured against the insurer was the value of the automobile at the time of the collision.

The defendant's testimony tended strongly to show that J. A. Phinney. the employé and agent of E. A. Jackson, and acting under the express instructions of said Jackson, had requested defendant's agents, Mitchell, Gartner & Walton, to eliminate and cancel the collision feature, and that the "rider" having reference to this feature, but apparently only in the way of limitation, had been removed; that it was the intention, however, of E. A. Jackson and his agent, and of defendant's agents, that the policy as originally issued should be changed and the collision feature eliminated. From an instructed verdict in favor of defendant the plaintiff has appealed.

The only question presented for our consideration is as to whether, under the facts and pleadings disclosed, the court properly gave a peremptory instruction. We are of the opinion that when plaintiff introduced the evidence as to her capacity to bring suit, as to the issuance of the policy containing the provision against loss or...