Home Ins. Co. of New York v. Roberts

• Decision Date: 13 January 1937
• Docket Number: No. 1645-6725.,1645-6725.
• Citation: 100 S.W.2d 91
• Parties: HOME INS. CO. OF NEW YORK v. ROBERTS et al.
• Court: Texas Supreme Court

Page 91

100 S.W.2d 91

HOME INS. CO. OF NEW YORK v. ROBERTS et al.

No. 1645-6725.

Commission of Appeals of Texas, Section B.

January 13, 1937.

Error to Court of Civil Appeals of Tenth Supreme Judicial District.

Action by F. W. Roberts and another against the Home Insurance Company of New York and others. Judgment for plaintiffs was affirmed by Court of Civil Appeals [67 S.W.(2d) 369], and named defendant brings error.

Judgments of trial court and Court of Civil Appeals affirmed.

R. G. Storey and H. B. Sanders, both of Dallas, for plaintiff in error.

Walker & Baker and Irwin T. Ward, all of Cleburne, for defendants in error.

RYAN, Commissioner.

This is a suit on a fire insurance policy, by the defendants in error, F. W. and Agnes Roberts, who were not the assureds in the policy, against plaintiff in error, and against T. E. and Mrs. Sallie Grant, who were the named assureds in the policy.

On findings of a jury in answer to special issues, the trial court rendered judgment for the plaintiffs Roberts against plaintiff in error for the sum of $1,500 with interest. This judgment was affirmed by the Court of Civil Appeals at Waco. 67 S.W.(2d) 369.

The record discloses: On March 28, 1932, F. W. Roberts, owner of certain city property in Cleburne, Johnson county, valued at $2,000, entered into a contract of exchange with T. E. Grant, owner of an approximately 50-acre tract in Johnson county outside the city of Cleburne, valued at $4,760, with an encumbrance thereon amounting to $1,260. Under the contract Roberts agreed to convey to Grant his city property, assume said indebtedness of $1,260, and pay $1,500 in cash; Grant agreed to convey his country property to Roberts. The agreement of exchange was consummated by execution of deeds between the parties, dated April 2 and April 4, 1932, respectively.

At this time, Grant held a fire insurance policy issued by the Home Insurance Company, dated June 18, 1928, effective from June 1, 1928, to June 1, 1933, covering the frame dwelling house situated on his country property, to the amount of $1,500, and on household and kitchen furniture therein to the amount of $500, and on barns and sheds to the amount of $200.

The Grants began moving off their place on April 20, 1932. They had removed most of their personal property, but not all, on that day, and expected to remove the balance the next morning, when Roberts would move in. The house burned that night about 11 p. m. and was a total loss. A portion of the furniture was burned and the loss was paid to Grant by the plaintiff in error under the policy sued on, which included both the house and furniture.

In their pleading the Grants pray that plaintiffs Roberts recover from the insurance company; the trial court's judgment, on the theory that as they are not seeking affirmative relief, specially provided that they should be and are bound by the judgment.

The policy provided that it should be void "if any change, other than by the death of the insured, take place in the interest, title or possession of the subject of insurance (except change of occupants without increase of hazard) whether by legal process or judgment or by voluntary act of the insured, or otherwise."

The case was tried on the theory of a waiver by the company of this provision of the policy, based upon notice to, and the acts and representations of, one Roy L. Doak, who, it is contended, was the agent and representative of the company, with full authority in the premises.

The act of 1931 (42d Leg. c. 96) authorizes fire insurance companies to appoint two classes of agents, local recording agents and solicitors.

Section 1 of the act (Vernon's Ann.Civ. St. art. 5062a, § 1) and section 2 are as follows:

"Sec. 1. Insurance agents, as that term is defined in the laws of the State, shall for the purpose of this Act be divided into two classes; Local Recording Agents and Solicitors.

"Sec. 2. By the term Local Recording Agent is meant a person or firm engaged in soliciting and writing insurance, being authorized by an Insurance Company or Insurance Carrier to solicit business and to write, sign, execute and deliver policies of insurance and to bind companies on insurance risks, and who maintain an office and a record of such business and the transactions which are involved, who collects premiums on such business and otherwise performs the customary duties of a Local Recording Agent representing an Insurance Carrier in its relation with the public.

"By the term solicitor is meant a person officing with and engaged in soliciting insurance on behalf of a Local Recording agent, who does not sign and execute policies of insurance and who does not maintain company records of such transactions. This shall not be construed to make a Solicitor of a Local Recording Agent who places business of a class which the rules of the company or carrier require to be placed on application or to be written in a supervisory office."

Under section 3 of said act (Vernon's Ann.Civ.St. art. 5062a, § 3) reading: "Sec. 3. When any person or firm shall desire to engage in business as a Local Recording Agent for an Insurance Company or Insurance Carrier, he shall make application for a license to the Board of Insurance Commissioners, in such form as the Board may require, and such license may be issued by said Board in the form prepared by it when he shall be found of good character and good reputation."

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