Fireman's Fund Ins. Co. v. Reynolds

• Decision Date: 27 June 1935
• Docket Number: No. 1620.,1620.
• Citation: 85 S.W.2d 826
• Parties: FIREMAN'S FUND INS. CO. v. REYNOLDS.
• Court: Texas Court of Appeals

Page 826

85 S.W.2d 826

FIREMAN'S FUND INS. CO. v. REYNOLDS.

No. 1620.

Court of Civil Appeals of Texas. Waco.

June 27, 1935.

Rehearing Denied September 19, 1935.

Appeal from District Court, McLennan County; Sam R. Scott, Judge.

Action by Mrs. Lorene Reynolds against the Fireman's Fund Insurance Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Jos. W. Hale, of Waco, for appellant.

F. M. Fitzpatrick, of Waco, for appellee.

GALLAGHER, Chief Justice.

Appellee, Mrs. Lorene Reynolds, owned a house and lot in an addition to Waco. Appellant issued its policy insuring her against direct loss or damage to said house from fire, subject to certain stipulations contained in such policy, which stipulations will be recited in connection with our discussion of appellant's contentions based thereon. Appellee occupied the premises for a time as a home. She then removed to San Antonio. Immediately after her removal from the house it was occupied by a tenant named Stapp. He vacated the same on March 3 or 4, 1933. Appellee, on learning that the house was vacant, wrote her brother in Waco, W. H. Hunt, to go to the agency which issued the policy and get a vacancy permit. He, on March 17, 1933, went to the office of the agent, stated that the house had been vacant for more than ten days, and requested and received a permit for the same to remain vacant for sixty days thereafter, during which period the liability of appellant in case of loss was to be only two-thirds of the amount stipulated in the face of the policy. He sent said permit to appellee in San Antonio, and she placed the same with the policy.

Appellee, on leaving for San Antonio, authorized her father, S. P. Hunt, who lived next door to the house, and her brother, W. H. Hunt, who lived elsewhere in Waco, to look after the same. Soon after the tenant Stapp vacated the house, some slight injury was done thereto by prowlers. For the purpose of preventing further depredation, appellee's father requested another son, Guy Hunt, to sleep in the house at night. Guy Hunt thereupon, on March 17, 1933, moved into the front room of said house, taking with him a bed, mattress, quilts, washstand, chair, and lamp, and with the exception of an occasional overnight visit with some friend, not at any time oftener than once a week, occupied said room and slept therein each night from the date aforesaid to June 2, 1933, when he vacated said house and a tenant named Adams moved into the same. Adams occupied said house until the 28th or 29th day of said month, when he vacated the same. Within a few hours after he left the house it was totally destroyed by fire. Appellee presented proofs of loss, upon consideration of which appellant demanded the privilege of examining the insured under oath. Appellee came to Waco and submitted to such examination. Shortly thereafter defendant expressly denied liability and appellee instituted this suit.

The case was tried by the court without the intervention of a jury and judgment rendered against appellant for $1,200, the full amount stipulated in the policy, with legal interest thereon. The court, at the request of appellant, filed findings of fact and conclusions of law. Appellant also had a full transcript of the evidence introduced at the trial prepared, signed by counsel, approved by the court, filed and transmitted as a part of the record in the cause.

Opinion.

Appellant contends that the policy sued on became, by its own terms, void, because the insured house became vacant and unoccupied on March 4, 1933, and so remained for more than ten days, and that its right to assert the invalidity thereof as a defense to this suit had not been waived. Said policy contained a provision, in substance, that unless otherwise provided by agreement indorsed thereon or added thereto, it should become void if the insured property was a dwelling and should be or become vacant for a period exceeding ten days or unoccupied for a period exceeding thirty days. It is conceded that said house became vacant and unoccupied and so remained for more than ten days prior to March 17, 1933. On that day appellee's brother, W. H. Hunt, acting for her and at her request, appeared in person at the office of appellant's agent and requested the issuance of a vacancy permit. He stated in connection with such request that the house was vacant and unoccupied and had been in such condition for more than ten days. Appellant's agent was absent from his office at the time and same was in charge of Mrs. Ewing, his assistant and clerk. She had express authority from him to issue vacancy permits, by the terms of which only two-thirds of the stipulated insurance should be paid in event of loss during such vacancy. Such permits did not require the payment of any additional premium and were apparently issued on request as a matter of course. Mrs. Ewing, acting for appellant, issued such a permit, authorizing the house to remain vacant or unoccupied for a period of sixty days from the date thereof. She signed the name of appellant's agent to such permit on the typewriter and delivered the same to said Hunt, who forwarded the same to appellee. Appellee received said permit, placed it with her policy, and relied thereon. Appellant's agent made a notation of the issuance of said permit on his daily report at the time, or caused the same to be done. He testified that he had a copy of said report in his office at the time of the trial. Appellant does not deny that its agent who issued the policy had authority to waive the technical forfeiture thereof on account of the prior vacancy and nonoccupancy, from which no injury or loss had at that time been sustained, nor that had such permit been issued by him in person, the issuance thereof would have constituted such recognition of the continued validity of the policy as to amount to a waiver of its right to avoid the same on account of such prior vacancy. See in this connection Home Ins. Co. v. Shepherd (Tex. Civ. App.) 63 S.W.(2d) 758, 760, par. 1 (writ refused); Springfield Fire & Marine Ins. Co. v. Brown (Tex. Civ. App.) 13 S.W. (2d) 916, 917, pars. 1 and 2; Austin Fire Ins. Co. v. Polemanakos (Tex. Com. App.) 207 S. W. 922, 925, par. 4. Appellant's specific contention is that the issuance of said permit did not constitute a waiver of the prior unauthorized vacancy because the same was issued by an assistant or clerk in the office of its agent and not by the agent himself. A phase of appellant's contention was considered by this court in the case of London & Lancashire Insurance Co., Ltd., v. Higgins, 68 S.W.(2d) 1056, 1059, pars. 9 to 11, inclusive. We quote therefrom as follows: "We may safely assert as a matter of common knowledge that a large part of the actual business of many insurance agencies was then and is now transacted by clerks and other employees. The authorities in this state hold that in agencies so conducted, the action of such clerks or employees in the usual course of the business of the agency and with the approval, express or implied, of the regularly constituted agent, is in legal effect the act of the agent himself. Phoenix Ins. Co. v. Ward, 7 Tex. Civ. App. 13, 26 S. W. 763, 764 (writ refused), and authorities there cited; Connecticut Fire Ins. Co. v. Fields (Tex. Civ. App.) 236 S. W. 790, 793, par. 4; Austin Fire Ins. Co. v. Brown (Tex. Civ. App.) 160 S. W. 973, 974, par. 3; Hartford Fire Ins. Co. v. Josey, 6 Tex. Civ. App. 290, 25 S. W. 685, par. 2; German Ins. Co. v. Everett (Tex. Civ. App.) 36 S. W. 125, 127 (1st column); Camden Fire Ins. Ass'n v. Wandell (Tex. Civ. App.) 195 S. W. 289, 290, par. 1, and authorities there cited. The rule is stated in 26 C. J. p. 42, § 31, as follows: `And a person empowered by an authorized agent to represent him in negotiations for insurance has the same power to bind insurer as has the agent.' See, also, Southern Mutual Fire Ins. Co. v. Mazoch Bros. (Tex. Civ. App.) 291 S. W. 257, 258, 259, pars. 1 and 2 (writ dismissed); Zurich General Accident & Liability Ins. Co. v. Fort Worth Laundry Co. (Tex. Civ. App.) 58 S.W.(2d) 1058, 1060, pars. 2 and 3, and authorities there cited; Universal Automobile Ins. Co. v. Hallinan (Tex. Civ. App.) 54 S.W.(2d) 199, 200, par. 1; American National Ins. Co. v. Park ...