Home Ins. Co. v. Lewis

• Decision Date: 15 December 1932
• Docket Number: No. 1288.,1288.
• Citation: 55 S.W.2d 207
• Parties: HOME INS. CO. v. LEWIS et ux.
• Court: Texas Court of Appeals

55 S.W.2d 207

HOME INS. CO. v. LEWIS et ux.

No. 1288.

Court of Civil Appeals of Texas. Waco.

December 15, 1932.

Error from District Court, Leon County; S. W. Dean, Judge.

Suit by J. N. Lewis and wife against the Home Insurance Company. Judgment for plaintiffs, and defendant brings error.

Reversed and remanded for a new trial.

Seale & Seale, of Centerville, and Thompson, Knight, Baker & Harris and Robert Lee Guthrie, all of Dallas, for plaintiff in error.

M. L. Bennett, of Normangee, for defendants in error.

ALEXANDER, J.

J. N. Lewis and wife brought this suit against the Home Insurance Company to recover the amount claimed to be due them as fire insurance on a stock of merchandise. The case was tried before a jury, and resulted in a verdict and judgment for the plaintiffs, and the defendants sued out a writ of error.

Giving the evidence that construction most favorable to the plaintiffs, as we are required to do, the facts are as follows: On August 10, 1929, the defendant insurance company issued and delivered to the plaintiffs a fire insurance policy on the stock of merchandise in question, being a stock of millinery goods. Mrs. Lewis had charge of the millinery store, and the policy was payable to her. It expired on August 10, 1930. The plaintiffs also carried a fire insurance policy on their residence, which policy was payable to J. N. Lewis. This policy was issued by another company, and expired about October 27, 1930. Both of these insurance companies were represented by the same agent—Mr. Ford. Mr. Ford did not write either of the original policies, but had succeeded to the agencies after they were delivered. On August 10, 1930, on the date the old policy on the stock of merchandise expired, Mr. Ford, as agent for the defendant, wrote a new policy on the stock of merchandise, and carried it to the store for the purpose of making delivery and collecting the premium. He handed it to Mrs. Lewis, and advised her that the old policy expired on that day. Mrs. Lewis testified that she did not accept the new policy. She further testified: "He (the agent) brought the policy in and I said I didn't have the money; that I would have to see Mr. Lewis. * * * He took the policy and went away." She further testified that she later spoke to her husband about the matter, and he agreed to see the agent and take care of it. The agent kept the policy in his office for about ten days, and, not having heard from Mr. Lewis, returned it to the insurance company for cancellation. In the latter part of October, 1930, either on the same day, or just a few days before the policy on the residence expired, the agent met Mr. Lewis on the street and said, "your policy is about to expire and do you want it renewed?" Mr. Lewis testified, "I told him certainly I did, I had never cancelled an insurance policy." The agent advised him that he had written a new policy and had it in his office. Mr. Lewis said, "Keep the policy and I will come and see you about it." At that time the agent had written a new policy on the residence and had it in his office. A few days after said street conversation between Mr. Lewis and the agent, the store building burned, and the stock of merchandise was destroyed. At the trial of the case, Mr. Lewis contended that at the time of said street conversation he and the agent had in mind a renewal of the policy on the stock of merchandise, and that the company through said agent thereby agreed to renew the insurance on the merchandise under the same terms as the old policy, and that by reason thereof plaintiffs were entitled to recover. The agent testified that he had in mind and intended a renewal of the policy on the residence.

Opinion.

The plaintiffs were seeking to recover on an oral contract for the renewal of a fire insurance policy. They alleged that they had previously carried a policy of insurance on said property which expired August 10, 1930, and that on or about said date the defendant, through its agent, orally agreed to reinsure said property for another year on the same terms that it had theretofore been insured. They did not, however, allege that they had paid, or agreed to pay, any consideration for such contract to reinsure. The defendant directed a general demurrer to the petition, and here assigns as error the action of the court in overruling the demurrer.

Where one sues to recover on an oral contract to insure property, the burden is on him to allege and prove that he has paid, or agreed to pay, some consideration for the contract of insurance. Since the petition in this case did not allege such consideration, it was subject to the general demurrer, and the court erred in overruling same. Couch on Insurance, vol. 8, § 2223; Texas Mutual Life Ins. Co. v. Davidge, 51 Tex. 244; Swift v. Central Union Fire Ins. Co., 279 Mo. 606, 216 S. W. 935; Royal Insurance Co. v. Eggleston, 19 Ala. App. 638, 99 So. 828; 10 Tex. Jur. 498; J. M. Radford Grocery Co. v. Jamison (Tex. Civ. App.) 221 S. W. 998, par. 4; Terrell, Atkins & Harvin v. Proctor (Tex. Civ. App.) 172 S. W. 996, par. 2; Tumlinson v. York, 20 Tex. 694.

The defendant further contends that the evidence was insufficient to show a contract to renew the policy of insurance, and that the court should have given an...