German-American Ins. Co. v. Evants

• Decision Date: 09 February 1901
• Citation: 61 S.W. 536
• Parties: GERMAN-AMERICAN INS. CO. v. EVANTS.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

61 S.W. 536

GERMAN-AMERICAN INS. CO. v. EVANTS.¹

Court of Civil Appeals of Texas.

February 9, 1901.

Appeal from district court, Cooke county; D. E. Barrett, Judge.

Action by S. S. Evants against the German-American Insurance Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Ledbetter & Bledsoe and Eldridge & Gardner, for appellant. Cruce & Cruce and Potter & Potter, for appellee.

HUNTER, J.

This was an action filed on the 7th day of April, 1899, in the district court of Cooke county, Tex., by the plaintiff, S. S. Evants, against the defendant, the German-American Insurance Company, upon a fire insurance policy to recover the sum of $1,850. The property insured consisted of a dwelling house occupied by the plaintiff as his home at the time the policy was issued and his household and kitchen furniture. The policy was issued at Marietta, Ind. T., September 15, 1898, and the fire which destroyed the house and property occurred on the 21st day of November, 1808. One of the grounds upon which the company refused to pay the loss and defended the action was that, after the policy was issued, the plaintiff moved out of his dwelling, and left it vacant and unoccupied for more than 10 days, in violation of the provisions of the policy. He moved, with his family, into the upper story of a stone building owned by him, situated about 400 yards from his residence, to stay there during the ensuing winter. The trial judge charged the jury, in substance, that the plaintiff had forfeited his right to recover on the policy, but submitted to the jury the issue as to whether or not the defendant had waived its right to claim the forfeiture by certain negotiations and consultations which took place between the adjuster for the insurance company and the plaintiff. The trial resulted in a verdict in favor of the plaintiff for the full amount of the policy sued on and interest, and the insurance company has appealed.

The question presented by appellant is whether the evidence warranted the court in submitting the issue of waiver of forfeiture to the jury. The evidence tended to establish the material allegations in the plaintiff's petition, and was sufficient to entitle the plaintiff to recover the full amount of the policy, unless the policy had been forfeited by reason of the plaintiff's removal from the premises and vacating the same for more than 10 days, and the forfeiture had not been waived. The facts on this issue are, briefly, these: The plaintiff and his family, at the time the policy was issued, in September, 1898, occupied the premises as a residence,—a home. They had a negro man servant, who occupied a servant's house in the back yard. The family left the premises about the 1st of November, and moved into rooms over the plaintiff's stone storehouse about 400 yards from the insured house for the purpose of remaining there during the winter months, as the stone building was warmer than the wooden house insured. They left nearly all their household furniture in the insured house, and had the negro servant to stay and sleep in a side room, which was part of the house. After the family had been moved into the stone storehouse for more than 10 days, the insured house was burned down, and the household goods almost totally destroyed by fire. The property insured was situated at Marietta, Ind. T., and the contract of insurance was made there. The policy contained the following stipulations: "This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the hazard be increased by any means within the knowledge or control of the assured; * * * or if a building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied, and so remain for ten days." "If fire occur, the insured shall give immediate notice of any loss thereby in writing to the company, protect the property from further damage forthwith, separate the damaged from the undamaged property, put it in the best possible order, and make a complete inventory of the same, stating the quantity and cost of each article, and the amount claimed thereon: * * * and shall furnish, if required, verified plans and specifications of any building." "This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements, or conditions as may be indorsed hereon or added hereto; and no officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy except such as, by the terms of this policy, may be subject of agreement indorsed hereon or added hereto, and as to such provisions and conditions no officer, agent, or representative shall have such power, or be deemed or held to have waived such provisions or conditions, unless such waiver, if any, shall be written upon or attached hereto; nor shall any provision, privilege, or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached." The fire occurred November 21, 1898. On the 23d of same month the appellant's adjuster arrived at Marietta, and began an investigation of the extent of the loss. Before beginning his investigation, however, he endeavored to get appellee to sign a printed form of agreement, in which it was stipulated that appellant company waived no rights of the company under the policy by reason of...