German Ins. Co. v. Everett

• Decision Date: 05 March 1898
• Citation: 46 S.W. 95
• Parties: GERMAN INS. CO. v. EVERETT.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

Page 95

46 S.W. 95

GERMAN INS. CO. v. EVERETT.¹

Court of Civil Appeals of Texas.

March 5, 1898.

Appeal from district court, Dallas county; Edward Gray, Judge.

Action by Mrs. M. J. Everett against the German Insurance Company. There was a judgment for plaintiff, and defendant appeals. Affirmed.

Oeland & Brown, for appellant. G. G. Wright, for appellee.

BOOKHOUT, J.

This is a suit brought by appellee against appellant on three fire insurance policies issued to her by the German Insurance Company. One of the policies was on a dwelling house, and was issued on January 6, 1894, insuring her in the sum of $900 against loss on it, for the period of one year from the date of its issuance. The other two were upon the household furniture and property situate in the insured dwelling. One of them was issued on March 6, 1894, for $800, and the other on June 15, 1893, for $500, and ran for 12 months from their respective dates. Appellee alleged: That she was on the several dates of the policies, and had been for some time prior thereto, the owner of the property covered by them. That the personal property was about the value of $2,200, and that while situated in the insured building, on March 26, 1894, a part of it, amounting to about $1,466, was destroyed by fire. That a part of the property was saved, but was damaged to the amount of $120.50, which was the agreed damage. Itemized lists of the property destroyed, the value of each item set opposite, and of damage to property, showing damage assessed, are attached as exhibits to the petition. That the house was destroyed by fire, and the personal property in it was of the value of $1,600. That the loss under the several policies was not caused, directly or indirectly, by any of the causes included by them, nor by the fault of the appellee. That the property was owned by Mrs. M. J. Everett at the time it was destroyed by fire. That soon after the fire appellee gave notice and furnished proofs of loss as required under the several policies, and that she was the legal owner and holder of the policies of insurance, and that the amount of said policies had long since been due and unpaid. Judgment was prayed for the several sums mentioned in the policies, aggregating $2,200, with interest thereon. The three policies were attached as exhibits and made a part of the petition. Appellant answered by general demurrer, general denial, and, specially, that each of the policies contains the following condition or stipulation: "If the interest in the property insured be a leasehold, rental, mortgagee's or undivided partnership interest, or a building standing upon leased ground, or not the absolute, sole, and unconditional ownership, or if the property above described is incumbered in any manner, it must be represented to this company, and expressed in this policy in writing; otherwise this insurance contract shall be void and of no effect." That appellee was not the sole, absolute, and unconditional owner of the property at the time the policy was issued, and that it was incumbered when the policy was issued. A policy should not be binding upon a company until the premium is actually paid, nor unless such payment is made before the fire occurs. That the premiums and consideration for the policies, or either of them, have never been paid, or no part thereof, by reason of which each policy is rendered void. Appellee, by supplemental petition, denied the matter set up in the answer of appellant, and averred that, if there was any mortgage or incumbrance on said policy, appellant and its agents knew all about it at the time, and before the execution of the policy of insurance sued on; that she notified appellant of whatever mortgage there was existing, and the policy was issued with full knowledge of all incumbrances of every character and description on the property; that the $800 policy sued on was a renewal policy of the same amount, in the same company, and was issued upon the request of plaintiff, and was delivered by defendant placing the same under the door of plaintiff's residence; that plaintiff sent the money to defendant's agent, at Dallas, but, on account of an accident to the bearer thereof, it was not delivered; that appellant never demanded payment of said premiums, which appellee was at all times ready and willing to pay; that, at the time the insurance was given to appellant through its agent, appellee stated that she used a gasoline stove; that the agent investigated the stove, and stated that he would put a gasoline permit in said policies sued on, and that when said agent delivered said policies to appellee the gasoline permit was pasted on the face of each of said policies; that said agent knew that appellee used a gasoline stove, in which she burned gasoline, before the issuance of said policies, and said agent told her it was all right to use it; that the gasoline was kept in a house some distance from the dwelling; that she never contributed in any manner to the destruction of said property.

The cause was tried before a jury, and resulted in a verdict and judgment for plaintiff for the sum of $1,887.65. Appellant's motion for new trial being overruled, it has duly prosecuted this appeal. This is the second appeal of this case. For opinion on the first appeal, see 36 S. W. 125.

Appellant's first assignment of error complains of the court's refusal to give to the jury the special charge requested by it, to the effect that the house covered by the $900 policy of insurance was incumbered by a mortgage, and, if this fact was unknown to the defendant company, then such incumbrance rendered the policy void. The policy contained a clause, in effect, that, if the property be incumbered in any manner, it must be so represented to the company and expressed in the policy in writing; otherwise the insurance contract shall be void and of no effect. Appellant pleaded that the house insured by one of the policies was incumbered by a mortgage for $900 at the time the policy was issued, which was unknown to the insurance company, and that by the terms of the contract this incumbrance rendered the contract void. The plaintiff replied to this plea that she made known to the defendant's agent at the time he solicited the insurance the mortgage on the house, and that by the execution and delivery of the policy defendant waived the same. It is held, if an insurance company delivers a policy, with full knowledge of the facts upon which its validity may be disputed, that the company cannot afterwards set up these facts as a ground for avoiding the policy. May, Ins. §§ 497, 498; Wood, Ins. § 497; Insurance Co. v. Ende, 65 Tex. 119. It is insisted by appellant in this case that it had no notice of the incumbrance, and that the above principle cannot be invoked.

The evidence in reference to the notice of the incumbrance is as follows: Lee Lacy was authorized by the general agents of the appellant insurance company to solicit insurance for the company. He would take applications, and report them to the general agents, at Dallas. The policies would be executed by the general agents, and then delivered to the assured by Lee Lacy, who would collect...