Home Ins. Co. v. Puckett

• Decision Date: 07 May 1930
• Docket Number: No. 1369-5524.,1369-5524.
• Citation: 27 S.W.2d 111
• Parties: HOME INS. CO. v. PUCKETT.
• Court: Texas Supreme Court

Page 111

27 S.W.2d 111

HOME INS. CO. v. PUCKETT.

No. 1369-5524.

Commission of Appeals of Texas, Section A.

May 7, 1930.

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

Action by W. A. Puckett against the Home Insurance Company. Judgment for plaintiff was affirmed by the Court of Civil Appeals [17 S.W.(2d) 849], and defendant brings error.

Reversed and remanded.

Thompson, Knight, Baker & Harris and Pinkney Grissom, all of Dallas, for plaintiff in error.

Thomas W. Thompson, of Greenville, for defendant in error.

SHARP, J.

W. A. Puckett instituted this suit in the county court of Hunt county against the Home Insurance Company upon a policy of insurance for $300 against loss or damage by tornado or cyclone, and alleged that on May 9, 1927, the property insured, which consisted of plaintiff's household goods, etc., covered by the policy, was totally destroyed by cyclone; that the policy was dated December 15, 1922, and was to run for a period of five years from the date thereof. Plaintiff prayed for judgment for the sum of $300, with interest thereon from the 9th day of May, 1927. The defendant answered with a plea in abatement, general demurrer, general denial, and furthermore that the suit could not be maintained by plaintiff because he had not complied with the provisions contained in the policy, which require that notice shall be given of such loss in writing to the company, and, within sixty days after the date of the tornado or cyclone, render a statement to the company signed and sworn to by the insured, stating the interest of the insured, etc.; and defendant further alleged that it was not liable to the plaintiff for any loss or damage that might accrue to property described in said policy while any promissory note or obligation, or part thereof, given for the premium, was past due and unpaid, and that the plaintiff had not complied with the provisions of the policy in that respect by being delinquent in the payment of one premium due for the year 1927, and that whatever loss plaintiff suffered occurred during the time he was delinquent in the payment of the premium due on the policy. Plaintiff in reply thereto alleged that he had complied with all of the provisions contained in the policy, and that the insurance company had waived the provisions in the policy of his failure to file proof of loss or to declare the policy forfeited for failure to pay the premium note when due according to the terms thereof. The case was tried before the court without a jury, and, upon the conclusion of the testimony, the court rendered a judgment for plaintiff against the defendant in the sum of $300, together with interest thereon, at the rate of 6 per cent. per annum, from the 9th day of May, A. D. 1927, and all costs of suit. The case was appealed to the Court of Civil Appeals for the Sixth Supreme judicial district, and was affirmed by that court. 17 S.W.(2d) 849.

Counsel for the Home Insurance Company earnestly contend that the undisputed evidence shows that the note and policy sued upon by plaintiff provided that the policy of insurance should lapse and be in suspension, if any premium note which was given for deferred premiums should not be paid when due, and that there could be no recovery under the policy so long as the premium note or any part thereof might be due and unpaid, and that, upon default in any installment of any such premium note, the unpaid balance should immediately become due and payable and considered as earned, and might be collected by law or otherwise; that the undisputed evidence shows that the premium note was given for a portion of the deferred premium, the last installment of which was due January 1, 1927, and which was not paid when due, and remained due and unpaid until some time in October, 1927, and that the loss by plaintiff occurred on May 9, 1927, and it being claimed by the insured that the suspension provision of the policy was not affected because the insurance company was estopped to assert said suspension provision because it had demanded and received the last premium of installment after the loss had occurred, and it is urged that the Court of Civil Appeals was in error in holding that the insurance company had demanded payment of the note and actually accepted payment thereof after the loss occurred, with the knowledge that the loss had occurred, and that the suspension provision of the policy had been waived by estoppel, and that by reason thereof the insured could recover under the policy. The policy sued upon by plaintiff is dated December 19, 1922, and was issued by J. M. Tisdal, agent, at Commerce, Tex., and countersigned by the insurance company, and contains the following provision:

"It is expressly agreed that this Company shall not be liable for any loss or damage that may occur to property herein described while any promissory note or obligation, or part thereof, given for premium remains past due and unpaid. Payment of notes must be made to The Home Insurance Company, at its Western Farm Department Office at Chicago, Illinois. The Company may collect by suit or otherwise such premium note or notes and a receipt from the said office of the Company must be received by the assured before there can be any revival of the Policy, which shall in no event carry the insurance beyond the original term. In case of loss prior to maturity of any note given for premium the Company may deduct said note in settlement of claim. If any part of the premium on this Policy for which credit is given be not paid when due, the whole premium shall be considered earned and be immediately payable."

The note given by plaintiff, dated December 19, 1922, payable to the Home Insurance Company, among other things, contains the following provision:

"I promise to pay to said company or order * * * Fifty-six Dollars and 40 cents payable in installments as follows:

"Fourteen Dollars and 10 Cents, upon the first day of January 1924 and Fourteen Dollars and 10 Cents upon the first day of January, 1925, and Fourteen Dollars and 10 Cents upon the first day of January, 1926, and Fourteen Dollars and 10 Cents upon the first day of January, 1927, without interest. And it is hereby agreed that in case any one of the installments herein named shall not be paid at maturity, or if any single payment promissory note (acknowledged as cash or otherwise) given for the whole or any portion of the premium for said Policy shall not be paid promptly when due, this Company shall not be liable for loss during such default, and the said Policy shall lapse until payment is made to this Company at the Farm Department at Chicago, and the whole amount of installments or notes remaining unpaid on said Policy may be declared earned, due and payable, and may be collected by law. In settlement of any loss under above Policy, this Company may deduct therefrom the entire amount of unmatured installments of this note. This note is given in payment for above policy of insurance."

The evidence introduced by plaintiff with reference to his loss and his connection with an agent or supposed agent of the insurance company is very meager and indefinite, and we set it out as follows:

"I lost this property on the 9th day of May, 1927. My house was totally destroyed, and there was nothing left of my household goods that I could use. That was on May 9th, 1927. At that time I had not paid the January installment on my premium note. No, sir, I did not notify the company of the loss. I know Mr. Dave Wright of Celeste; I have known him ten or twelve years. I know of his writing insurance among my neighbors. He wrote a policy for me, a contract previous to this one. I am sure that he wrote Ed Holloway. I saw him figuring with one of the Holloways; I couldn't tell you the exact date, but it was about a year before my loss. Mr. Wright said that his purpose was writing insurance. When he came down on the morning after the loss, he told me that he would report my loss. Mr. Wright lives at Celeste, Texas. He has lived there ever since I have known him. That piece of paper which you show me is a note payable to The Home Insurance Company dated December 19th, 1922. It is signed by W. A. Puckett. That is the note I gave The Home Insurance Company. * * * Five years previous to this time I had taken out a policy through Mr. Dave Wright, at Celeste, Texas, and I guess I signed an application at that time. When I got insurance on my farm property I...