Liverpool & London & Globe Ins. Co. v. Ende

• Decision Date: 13 November 1885
• Docket Number: Case No. 1910
• Citation: 65 Tex. 118
• Parties: THE LIVERPOOL AND LONDON AND GLOBE INSURANCE COMPANY v. FRED ENDE.
• Court: Texas Supreme Court

65 Tex. 118

THE LIVERPOOL AND LONDON AND GLOBE INSURANCE COMPANY

v.FRED ENDE.

Case No. 1910

Supreme Court of Texas.

Nov. 13, 1885.

APPEAL from Hunt. Tried below before the Hon. F. B. Sexton, special judge.

This is a suit brought by appellee to recover $2,500 with interest, on a policy of insurance against loss by fire upon a certain three-story brick building in Greenville, Texas, known as the Ende hotel, issued by appellant on the 16th day of December, 1882, which building appellant claims to have been destroyed by fire, on the 7th day of April, 1883.

This the appellant denies, and claims that the building fell, not as the result of fire, but from other causes, and that by one of the conditions on which the policy was issued, the contract of insurance thereby at once ceased and determined.

Appellant further claimed that appellee was not the sole and unconditional owner of the building so insured at the time of its insurance, but that the title had passed from appellee to assignee J. J. Cooper, by a deed of assignment made for the benefit of creditors, on the 10th day of April, 1882, and that this fact was not expressed in the written part of the policy, and that by reason of one of the conditions upon which the policy issued the contract of insurance was thereby rendered void, ab initio.

Appellant further claimed that the policy was, according to one of its conditions, vitiated and rendered null and void, by reason of the keeping of gunpowder in the building for sale.

The case was tried with the intervention of a jury at July term, 1885, and resulted in a verdict and judgment for appellee in the sum of $2,933.33, from which judgment appellant appealed.

Second error assigned. The court erred in admitting the testimony of the witness, R. R. Neyland, to impeach appellant's witness, D. C. Bell.

The question propounded to appellant's witness, D. C. Bell, was by cross-interrogatory, and was whether he believed in the existence of a God, and whether he did not (giving time and place) “in the presence of several gentlemen” deny the existence of a God, and curse Mrs. Pruitt, one of the victims in the Ende hotel disaster.

Bell's testimony showed that there was fire in the south end of the building, where it was shown there were no lamps burning within a few minutes after the fall of the building. There were no facts material to appellant's defense shown by witness Bell that were not materially shown by other witnesses, whose testimony was not discredited.

Perkins, Gilbert & Perkins and Brooks & Looney, for appellants, on homestead, cited: Shryock & Rowland v. Latimer, 57 Tex., 674; Wood on Fire Ins., p. 540, sec. 313; Wallace & Co. v. Bogel & Bro., 62 Tex., 636;Chrisman v. Miller, 15 Tex., 159;Dodd v. Arnold, 28 Tex., 97, and cases therein cited; Payne v. Francis, 37 Tex., 75.

On the charge of the court as to general agents, they cited: Crozier v. Kirker, 4 Tex., 252;Gay v. McGuffin, 9 Tex., 501;Andrews v. Marshall, 26 Tex., 212;Love v. Wyatt, 19 Tex., 312;Cobb v. Beall, 1 Tex., 342.

On evidence they cited: Ins. Co. v. Gray, 80 Ill., 28;Robertson v. Dodge, 28 Ill., 161; Droyer v. Bassett, 63 Tex., 274;Franklin v. Tiernan, 62 Tex., 92.

Mathews & Neyland, E. W. Terhune, T. D. Montrose, and D. Upthegron, for appellees, on evidence, cited: 1 Greenl. Ev., sec. 462, 3d ed.; Weir v. McGee, 25 Tex., Supp., 20; Davis v. Davis, 5 Tex., 389;Willis v. Chambers, 8 Tex., 150.

On instructions, they cited: Faquahr v. Dallas, 20 Tex., 200;Thompson v. Payne, 21 Tex., 625;Linn v. Wright, 18 Tex., 317-340;Powell v. Haley, 28 Tex., 55, 56;Bast v. Alford, 20 Tex., 229;Cole v. Cole, 17 Tex., 6, 7; also Supreme Court Rules; see Thatcher v. Mills, 14 Tex., 16;Alexander v. State, 12 Tex., 544;Converse v. McKee, 14 Tex., 30;Hollingsworth v. Holshausen, 17 Tex., 47.

On the character of the policy, they cited: Woods on Fire Ins., 175, 309, 503; 51 Barb. (N. Y.), 284;56 N. Y., 354; Woods on Fire Ins., 644, 846, 629, 636, 647, 663, et seq., 837, 839, 672; Abbott's Trial Ev., 489; Home Ins. Co. v. Balt. W. Co., 93 U. S., 548.

STAYTON, ASSOCIATE JUSTICE.

The matters in reference to which the witness, Bell, was interrogated, with a view to impeaching his credibility, were not relevant to the issue to be tried, and the court below should not have admitted the evidence complained of. 1 Greenl. Ev., 462.

It does not follow, however, that this furnishes sufficient ground for the reversal of the judgment.

An inspection of the record does not show that his evidence, if it stood in every way unimpeachable, would have benefited the defendant.

It is to some extent unintelligible, but as it stands in the record it cannot be said that his evidence does not tend more strongly to show that the house was in process of destruction by fire before it fell, and that this was the real cause of its destruction, than to prove the reverse fact, which the defendant sought to establish by the witness.

The manner in which the statement of facts is made up is to be condemned; but it must be presumed, in so far as the answers of the witness are unintelligible from the record, that they would be of no materiality if the questions, as well as the answers, were given; for to hold to the contrary would require this court to presume that the judge who tried the cause has not done that which, by his certificate, he declares that he did.

The charge of the court, in reference to the effect of the assignment, made by Ende for the benefit of his creditors, upon the property insured, if protected to him from forced sale as his place of business at the time assignment was made, is correct. Miller v. Menke, 56 Tex., 540.

We do not however deem it necessary, in view of other questions in the case, to consider how far a property such as that insured, would, or could be protected from forced sale by reason of the fact that a part of it may be used as a place where the head of a family carries on his business. That question is an important one which this court will not undertake to decide until a case is presented which makes its decision necessary.

Ende made an assignment under the statute on April 10, 1882, for the benefit of such of his creditors as would consent to take under it and release him.

A schedule of the real property which he intended should pass by the deed was appended to it, and did not embrace the property on which, on December 6, 1882, the policy sued on was issued. That the property, prior to the assignment, was used in part by Ende as his place of business, is shown as is it that he was so using it at the time the policy issued and up to the time the property was destroyed. It is also shown that at the time the policy issued his family were living in some of the rooms of the building, and so continued until the building was destroyed.

It appears by the evidence that Alexander and F. V. Ende were the general agents of the insurance company, and, by the policy itself, that it was not to become operative until countersigned by them.

Their principal was a foreign corporation, and the policy was issued upon a verbal application made to the agents, which, it is not shown, was transmitted, or required to be transmitted to the home office, and upon that application a policy issued which is not claimed to be void for want of power in the agents to do whatever the principal might have done in reference to the issuance of the policy in question.

Under such a state of facts it must be held that the acts of the agents are the acts of the principal, and that knowledge of the agent as to any fact affecting the risk is the knowledge of the principal. Minor v. Insurance Co., 27 Wis., 698.

Alexander, one of the agents, testified as follows: “I was acquainted with the property of Mr. Ende at the time of the issuance of the policy. I was editor and publisher of a newspaper in Greenville. I knew of the assignment and published the notice of it; knew of it soon after it was made. At the time of the issuance of the policy in this case, I knew that Pruitt and James Armistead were occupying the property as a hotel and store-house. I knew Ende claimed the property as homestead or place of business. He had occupied, for years prior to the assignment, the lot as a place of business. After the assignment Mr. Ende with his family lived on the property in question. He made no written application for the policy. He applied to me verbally for the issuance, and being acquainted with the property, I issued the policy. I don't know where Ende lived just prior to the issuance of the policy. I don't think anything was said as to the ownership of the property. I had never seen the deed of assignment; all I know was that he claimed it. At the time of the issuance of the policy he did not inform me that he had conveyed the property to Cooper under the deed of assignment. Don't know where he lived when the policy was issued. I issued the policy by reason of Ende's application and by reason of his possession of the property.”

The deed of assignment made by Ende was recorded April 10, 1882.

The policy contains the usual clause: “If the...