Hanover Fire Ins. Co. v. Nash, 2913.

• Decision Date: 04 January 1934
• Docket Number: No. 2913.,2913.
• Citation: 67 S.W.2d 452
• Parties: HANOVER FIRE INS. CO. v. NASH et al.
• Court: Texas Court of Appeals

67 S.W.2d 452

HANOVER FIRE INS. CO. v. NASH et al.

No. 2913.

Court of Civil Appeals of Texas. El Paso.

January 4, 1934.

Rehearing Denied January 25, 1934.

Error from District Court, Dallas County; W. M. Taylor, Judge.

Suit by Mrs. Hattie Nash and husband against the Hanover Fire Insurance Company. Judgment for plaintiff, and defendant brings error.

Corrected and affirmed.

E. G. Senter, of Dallas, for plaintiff in error.

John Zumwalt and Sullivan & Wilson, all of Dallas, for defendants in error.

HIGGINS, Justice.

For a recited consideration of $1 and love and affection, J. E. South conveyed to Mrs. Hattie Nash, by general warranty deed, certain land in Dallas county, reserving to the grantor a life estate. Mrs. Nash and her husband, J. A. Nash, moved upon the land, occupying with South a house upon the same. Discord soon arose between South and the Nashes and the latter removed from the premises leaving South in possession. Thereafter the Hanover Fire Insurance Company issued to Mrs. Nash a policy insuring the house against fire. The policy is referred to as a farm policy and was issued by Floyd West & Co., general agents of the company, for Texas. The policy was issued upon a written application bearing the signature of Mrs. Nash. She was solicited to take out the insurance by one A. W. Landers, whom the jury found to be the agent of the insurance company and authorized by the general agents to solicit such insurance for said company. Mrs. Nash's signature to the application for the insurance was affixed by Landers by her authority. The house was destroyed by fire and this suit was brought by Mrs. Nash and husband to recover upon the policy. Upon special issue findings, judgment in her favor was rendered.

The policy contains the usual stipulations avoiding the same if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning the insurance or the subject thereof; or if the interest of the assured be not truly stated therein; or if the interest of the insured in the property be other than unconditional and sole ownership; or if the subject of insurance be a building on ground not owned by the insured in fee simple.

In behalf of the plaintiff in error it is urged a peremptory charge in its favor should have been given because of misrepresentations by Mrs. Nash in her application concerning her interest and breach of the stipulations concerning sole and unconditional ownership, etc.

When an insurer, at the time of the issuance of a policy, knows of existing facts which, if insisted upon, would invalidate the contract from its inception, such knowledge constitutes a waiver of the right of avoidance because of such facts, and an estoppel arises which precludes the insurer from setting up such facts in avoidance of the contract. Many authorities to this effect could be cited. Some of them are noted in St. Paul, etc., Ins. Co. v. Kitchen (Tex. Com. App.) 271 S. W. 893, where such principle was applied. The evidence shows that the agent Landers, prior to the issuance of the policy, was delivered the deed from South under which Mrs. Nash acquired only an interest in remainder; that he inspected the same, told Mrs. Nash it was all right and she could insure the property. He knew the Nashes had moved away and that South was in possession. He also had a conversation with South prior to sending in the application which put him upon notice of the rights of South in the property. The jury found that prior to the execution of the application for the insurance Mrs. Nash delivered to Landers her deed from South, and South also advised Landers that he claimed an interest in the property.

The knowledge of these facts, if imputable to plaintiff in error, operates as a waiver of those representations and stipulations relating to the interest of Mrs. Nash and estops appellant from insisting upon an avoidance of the contract because Mrs. Nash had only an estate in remainder after the termination of the life estate of South. St. Paul, etc., Ins. Co. v. Kitchen (Tex. Com. App.) 271 S. W. 893; Southern Underwriters v. Jones (Tex. Civ. App.) 13 S.W.(2d) 435; American, etc., Ins. Co. v. Bailey (Tex. Civ. App.) 3 S.W.(2d) 539; Springfield, etc., Ins. Co. v. Brown (Tex. Civ. App.) 13 S.W.(2d) 916; Sun Life Ins. Co. v. Phillips (Tex. Civ. App.) 70 S. W. 603.

The evidence shows, and the jury found, that Landers was authorized by the general agents to solicit such insurance. The evidence also shows he inspected and appraised the house; the policy was sent to him for delivery. He collected part of the premium in cash; accepted notes for the balance; sent the cash and notes to the general agents after deducting his commission. In fact, Landers, according to his testimony, seems to have had all of the authority ordinarily possessed by local fire insurance agents except authority to sign the policies and issue same without previous submission to the general agents for approval.

The authorities in this state, and the great weight of authority in other jurisdictions, support the view that knowledge of such an insurance agent is imputable to his principal. Volume 5, and supplemental vol. 8, Cooley on Ins. p. 4049, in both volumes; Southern Mut. Fire Ins. Co. v. Mazoch Bros. (Tex. Civ. App.) 291 S. W. 257; Southern Underwriters v. Jones (Tex. Civ. App.) 13 S.W.(2d) 435; Southern Travelers' Ass'n v. Boyd (Tex. Civ. App.) 1 S.W.(2d) 446; Id. (Tex. Com. App.) 12 S.W.(2d) 183; Law v. Texas, etc., Ins. Co. (Tex. Com. App.) 12 S.W.(2d) 539; Id. (Tex. Com. App.) 16 S.W.(2d) 277; Lee v. Mutual, etc., Ass'n (Tex. Civ. App.) 47 S.W.(2d) 402.

We, therefore, hold plaintiff in error is estopped to avoid the contract because Mrs Nash had only an estate in remainder in the house and the land upon which it is situate.

In this connection plaintiff in error also attacks the title of Mrs. Nash to the estate in remainder upon this ground: That as a part of the consideration for the deed from South to Mrs. Nash it was collaterally agreed that she and her husband would move upon the place, support and care for South the rest of his life. It is asserted Mrs. Nash and husband breached this agreement, whereby her title failed.

We need not inquire as to the effect, if any, of such alleged breach upon Mrs. Nash's title. Certainly it did not operate, ipso facto, to avoid the same and divest her title. If it be conceded that South could have successfully maintained an action to cancel and rescind his conveyance, nevertheless, until this was done Mrs. Nash held title to the estate in remainder. Her title...