International Fire Insurance Co. v. Black

• Decision Date: 01 July 1915
• Docket Number: (No. 1492.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 179 S.W. 534
• Parties: INTERNATIONAL FIRE INSURANCE CO. v. BLACK.
• Court: Texas Court of Appeals

Page 534

179 S.W. 534

INTERNATIONAL FIRE INSURANCE CO. v. BLACK.

(No. 1492.)^*

Court of Civil Appeals of Texas. Texarkana.

July 1, 1915.

Rehearing Denied October 7, 1915.

Error from District Court, Panola County; W. C. Buford, Judge.

Action by S. C. Black against the International Fire Insurance Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Locke & Locke, of Dallas, and Brooke & Woolworth, of Carthage, for plaintiff in error. Jno. W. Scott, of Marshall, and Frank Lawson, of Carthage, for defendant in error.

WILLSON, C. J.

The suit was by defendant in error Black on a policy issued, he alleged, by plaintiff in error through its agent A. C. Littlejohn November 5, 1912, insuring his (Black's) dwelling house, situated on a farm in Panola county about 18 miles southeast of Marshall, in Harrison county, in the sum of $2.000, and the contents thereof in the sum of $1,000, against loss by fire. The house and its contents were destroyed by fire March 12, 1914, while the policy was in force, it was alleged. Plaintiff in error denied that it had ever issued such a policy as the one sued on, and denied that said Littlejohn was its agent. The trial was by the court without a jury, and resulted in judgment in favor of defendant in error for $3,000, interest and costs.

That plaintiff in error on June 22, 1911, authorized Littlejohn to act as its agent at Marshall and furnished him the blank forms of policies, etc., it expected he would need in the transaction of its business, was not disputed. That the policy issued by him to defendant in error was one of plaintiff in error's policies was disputed, but we do not understand plaintiff in error to be in the attitude of questioning the sufficiency of the evidence relied upon to support the finding involved in the judgment, that the policy was issued on its behalf by Littlejohn as its agent. The contention of plaintiff in error is that the trial court erred in not rendering judgment in its favor, because, as it insists is true: (1) It appeared from "the great preponderance of the evidence" that Littlejohn was not its agent at the time he issued the policy; and (2) that, if it did appear that he was then its agent, it further conclusively appeared that as such he was without authority to issue its policies on farm property, without respect to where same was situated, and was without authority to issue its policies on property of any kind in Panola county.

Notwithstanding circumstantial evidence strongly tending to show that Littlejohn's agency for plaintiff in error had terminated at the time he issued the policy sued upon, the trial court had a right to believe Littlejohn when, as a witness, he testified that his agency had not then terminated. As his testimony was sufficient to support the finding involved in the judgment to the contrary of the insistence of plaintiff in error, it is not for this court to say that the finding was opposed by a preponderance of the evidence and therefore wrong. The question for an appellate court is not whether findings of a trial court complained of "are supported by a preponderance of the evidence, but it is whether or not there is evidence to support them." Wells v. Yarbrough, 84 Tex. 660, 19 S. W. 865; Koehler v. Cochran, 19 Tex. Civ. App. 196, 47 S. W. 394.

In a letter dated January 12, 1912, plaintiff in error advised Littlejohn that "the International will not write farm property under the new management." It is not doubted that the effect of this letter, as between plaintiff in error and Littlejohn, was to deprive the latter of the right he had before he received it to issue policies of the former on farm property. But the fact that Littlejohn, because of the restriction in the letter referred to, was without authority to issue the policy sued upon, is not a reason why it should be held that plaintiff in error was not liable thereon; for it appears that defendant in error at the time he dealt with Littlejohn was ignorant of the restriction on his authority. Defendant in error therefore had a right to assume that Littlejohn, being empowered by plaintiff in error to issue its policies, was authorized to issue the one in question; and plaintiff in error should be held to be estopped from asserting to the contrary. 1 Clark & Skyles on Law of Agency, §§ 196, 206, 207, 208, 451; 1 Cooley's Briefs on Law or Ins. p. 347. Plaintiff in error, as we understand it, does not contend that the law is otherwise. Its contention is that the estoppel against it was not available to defendant in error because he did not plead it. Undoubtedly the general rule is that facts relied upon to establish an estoppel must be pleaded. Insurance Co. v. Bank, 17 Tex. Civ. App. 477, 43 S. W. 831; Swayne v. Insurance Co., 49 S. W. 518; Rail v. Bank, 3 Tex. Civ. App. 557, 22 S. W. 865. But, it seems, the rule does not apply where the party asserting the estoppel has not had an opportunity to plead it. Abbott's Trial Brief, pp. 1640, 1644; Schurtz v. Colvin, 55 Ohio St. 274, 45 N. E. 527. Here defendant in error alleged that the policy was issued by plaintiff in error "by and through its agent A. C. Littlejohn." The answer of plaintiff in error to the allegation was as follows:

"Defendant * * * denies that A. C. Littlejohn was its agent, and denies that he had authority to issue any such policy of insurance."

As we construe the answer, it was merely a denial by plaintiff in error that Littlejohn was its agent at all. Defendant in error overcame that defense by proof showing that Littlejohn was its agent to...