Eckel v. Camden Fire Ins. Ass'n.

• Decision Date: 21 March 1928
• Docket Number: (No. 9103.)
• Citation: 5 S.W.2d 849
• Parties: ECKEL v. CAMDEN FIRE INS. ASS'N.
• Court: Texas Court of Appeals

5 S.W.2d 849

ECKEL v. CAMDEN FIRE INS. ASS'N.

(No. 9103.)

Court of Civil Appeals of Texas. Galveston.

March 21, 1928.

Rehearing Denied April 12, 1928.

Error from District Court, Waller County; J. L. Manry, Judge.

Suit by Frank Eckel against the Camden Fire Insurance Association, in which the Northern Insurance Company intervened. From a judgment dismissing the suit, plaintiff and intervener bring error. Reversed and remanded.

Thompson, Knight, Baker & Harris, and Adair Rembert, all of Dallas, for plaintiff in error.

Andrews, Streetman, Logue & Mobley, of Houston, for defendant in error.

LANE, J.

Frank Eckel was asserting a claim against the Northern Assurance Company, hereinafter for convenience referred to as the Northern Company, for the sum of about $1,800. He had placed this claim in the hands of Mr. Allen Hannay, as his attorney, for collection, with instructions to handle the matter in his own way. In the early part of February, 1922, one Joseph P. Clark was the representative and local agent of the Camden Fire Insurance Association, hereinafter called the Camden Company, at Hempstead, Waller county, Tex., and at such time, and at all times since, Cravens, Dargan & Roberts, a copartnership, of Houston, Tex were the general agents of the Camden Company.

On or about the______day of February, 1922, Eckel approached Joseph P. Clark for the purpose of obtaining fire insurance upon a certain storehouse, stock, fixtures, etc., property of the Eckels, situated near Hempstead, in Waller county, Tex. Clark thereupon made an inspection of said property, and took from Eckel a written application for insurance thereon for the sum of $2,050. Upon such application being made, Clark made a diagram of the property and furnished the same to the general agents of the Camden Company, together with other information, as well as the answers made by Eckel to questions propounded to him by Clark. Clark signed his name to such application and other data accompanying the same. These papers were dated February 26, 1922. The material part of the application is as follows:

"Application of Mr. Frank Eckel for insurance against loss by fire and lightning for the sum of ($1,250.00) ($800.00) and for insurance against loss by tornado or cyclone for the sum of $____, as stated below, from the date of approval of this application by Cravens, Dargen & Roberts, managers at Houston, Texas."

This application was forwarded to Cravens, Dargan & Roberts, general agents of the Camden Company, at Houston, for their approval or rejection. On the 3d day of March, 1922, Cravens, Dargan & Roberts accepted the application by the following writing:

"Dated March 3, 1922. James P. Clark, Hempstead, Texas. Application Frank Eckols building, stock and fixtures Prairie View — Satisfactory. Write in Camden subject to inspection later by our special agent, and subject to investigation we are making. Return application and send us survey and diagram with daily report so we may have rate published."

On the 4th day of March, 1922, a fire destroyed the storehouse, stock, fixtures, etc., the property of Eckel, mentioned in the application and acceptance above set out, and Eckel or his agent or attorney demanded of the Camden Company payment of the said sum of $2,050, claiming that its acceptance of Eckel's application for insurance was in effect an insurance contract. After the destruction of Eckel's property, Eckel, for and in consideration of a certain sum of money paid by the Northern Company in settlement of the controversy between the two, executed and delivered to the Northern Company a written instrument, the material parts of which are as follows:

"I, Frank Eckel, hereby assign and transfer to the Northern Assurance Company any and all claim I may have against any company represented by Cravens, Dargan & Roberts, of Houston, Texas, covering certain of my property and damaged by fire, on March 4, 1922, as security for advances made me by the Northern Assurance Company on this day, on account of such loss, to be repaid to the Northern Assurance Company only out of the recovery, if any, as against the company or companies represented by Cravens, Dargan & Roberts, this agreement not being an agreement on my part to pay any sum, but that the Northern Assurance Company shall have any and all recovery that they may make against any company or companies represented by Cravens, Dargan & Roberts, to repay the advance which they have made me, and any expenses to which they may be put to affect any such recovery, it being understood that while recovery can be attempted in my name, and I will assist to the best of my ability in the same, that I shall not be charged with any expense in connection therewith, but all of such expenses shall be borne by the Northern."

By authority of the transfer of Eckel above set out, Will. C. Thompson and Allen Hannay, attorneys for the Northern Company and Eckel, filed suit in the district court of Waller county on the 27th day of January, 1923, in the name of Frank Eckel and against the Camden Company, to recover the sum of $2,050, alleged to be due by reason of the insurance due by the Camden Company upon the insurance contract mentioned in the aforesaid transfer. On the 5th day of April, 1922, the Camden Company, through its counsel, filed in court the following motion:

"Comes now the Camden Fire Insurance Association, defendant in the above styled and numbered cause, and shows to the court that it believes that this suit was instituted against and is being prosecuted against it without authority on the part of the plaintiff's attorney or attorneys, as the case may be. Wherefore said defendant moves the court to require said attorney or attorneys, as the case may be, to appear before this court and show by what authority he or they instituted, or by what authority he or they prosecute, this suit; and defendant also requests that the court set down this motion for hearing at a stated time, in order that due notice may be given said attorney or attorneys, as the case may be, and that he or they may be allowed five (5) days from and after such notice before being required to appear and show said authority."

Said motion was verified. After the filing of such motion, to wit, on the 12th day of October, 1926, and before the motion was heard and disposed of, the Northern Company, by and through its attorneys, Thompson, Knight, Baker & Harris, filed what it termed its supplemental petition, in which it joined Frank Eckel as plaintiff in the prosecution of the suit theretofore filed by Thompson and Hannay, making Frank Eckel plaintiff against the Camden Company, and on the same day the Camden Company filed the following motion:

"Comes now the Camden Fire Insurance Association, defendant in the above cause, and moves the court to dismiss this suit, as brought in the name of Frank Eckel on January 27 1923, in the district court of Waller county, because of the lack of authority of plaintiff's attorney to file this suit."

In support of such motion the Camden Company offered in evidence the following affidavit:

"State of Texas, County of Waller.

"Before me, the undersigned authority, on this day personally appeared Frank Eckel, known to me to be the person whose name is hereto subscribed as affiant, who being by me duly sworn, deposes and says:

"My name is Frank Eckel. I have been advised that a certain suit has been filed in my name against Camden Fire Insurance Association, a corporation, in the district court of Waller county, Texas, citation having been served therein upon Mr. Joseph P. Clarke, the local agent of said Insurance Company; the same being returnable on the first Monday in April, 1923. I have also been advised that the said suit involved a supposed claim by me against said defendant for insurance money alleged to be due by reason of a fire loss sustained by me as the result of my grocery store having been burned. This affidavit is made to definitely certify that I had nothing to do with the filing of this lawsuit, and that I do not claim and have not claimed that the Camden Fire Insurance Association owes me, or has ever owed me, any money on account of said fire, and that I do not claim that I had any insurance written by said company on my grocery store. I have never made out any proof of loss, or presented any claim to said company, or to any agent of said company, and do not intend to take any such action. [Signed] Frank Eckel.

"Sworn to and subscribed before me this 31st day of January, 1923.

                     "[Seal]             T. O. Taylor
                  "Notary Public, Waller County, Texas."
                

Attorney Allen Hannay, a witness for the plaintiff on the motion, testified that he handled a claim for the plaintiff, Frank Eckel, which he had relative to a fire that destroyed his property (the claim referred to was one against the Northern Company); that in the negotiations with Mr. Thompson, who represented the Northern Company, he and Thompson came to an agreement or settlement, the substance of which was that he, for Eckel, surrendered a policy issued by Thompson's client to Eckel; that in such settlement Eckel was paid $1,800; that in consideration of such agreement and settlement Mr. Eckel agreed to turn over to Thompson's client (the Northern Company) any claim he might have against the Camden Company; that to his best recollection such agreement was just about the same as set out in the transfer from Eckel to the Northern Company, heretofore set out in this opinion. He stated the transfer was executed in consideration of Mr. Thompson's client paying to Eckel $1,800.

Frank Eckel testified that he made a claim against the Northern Company upon a policy of insurance issued by said company, insuring his property, which was destroyed by fire on the 4th day of March, 1922. That the Northern Company paid him either $1,880 or $1,870; that he could not remember which; that Mr. Allen Hannay handled the negotiations for him;...