National Fire Ins. Co. v. Plummer

• Decision Date: 10 February 1921
• Docket Number: (No. 648.)
• Citation: 228 S.W. 250
• Parties: NATIONAL FIRE INS. CO. v. PLUMMER.
• Court: Texas Court of Appeals

228 S.W. 250

NATIONAL FIRE INS. CO. v.PLUMMER.

(No. 648.)

Court of Civil Appeals of Texas. Beaumont.

February 10, 1921.

Appeal from Jefferson County Court; D. P. Wheat, Judge.

Action by Geo. A. Plummer against the National Life Insurance Company.Judgment for plaintiff, and defendant appeals.Reversed and rendered.

Orgain & Carroll, of Beaumont, for appellant.

T. H. Bowers, of Beaumont, and Rex G. Baker, of Houston, for appellee.

HIGHTOWER, C. J.

We find in appellant's brief a concise and clear statement of the nature of this suit, and it is conceded by appellee to be correct, and is adopted by him.It is as follows:

"This suit was filed by George A. Plummer on September 19, 1919, in the county court of Jefferson county at law, in which it was alleged that the National Union Fire Insurance Company on the 20th day of June, 1918, insured plaintiff's household goods and furniture in Beaumont, Tex., against loss by fire, which policy was numbered 26370, expiring on July 7, 1920, and in the amount of $1,000; that on or about the 2d day of February, 1919, a fire occurred at plaintiff's home at 394 Harriott street, destroying said residence and practically all of the household goods and furniture, resulting in a loss of more than $1,000; that the National Union Fire Insurance Company thereafter paid $600, being 60 per cent. of the face value of the policy, but refused to pay the other 40 per cent.The defendant in due time answered that it wrote the policy in question and specially pleaded that said policy only covered said household goods and furniture at 1850 South Neches street, and not elsewhere; that said household goods and furniture were moved from said location without the consent or knowledge of the defendant, or its agents, to a different location than that named in the policy; that the place where said goods were removed was in violation of the terms of the policy, and a more hazardous location, and was the proximate cause of the destruction by fire; the defendant further pleaded that on March 4, 1919, through its assistant treasurer, R. M. Nevins, it issued draft in the sum of $600 in full satisfaction of plaintiff's claim, and that same was accepted, and the proceeds thereof received in full satisfaction, compromise, and indemnity for the loss and damage, under said policy; and that at the time said accord and satisfaction was had, there existed a controversy between plaintiff and defendant as to liability thereunder.Thereafter the plaintiff specially set up that the said $600 accepted under a mistake as to legal rights, which was caused by alleged fraudulent misrepresentations made by the defendant's claim adjuster, Myron T. Kinney, just prior to the acceptance by plaintiff of said draft; said misrepresentations alleged were that the plaintiff had forfeited his right to recover by removing his household goods without the consent of the defendant; that said agent was acting in the scope of his authority, and that said representation was made to induce plaintiff to settle; that he carried with him and read from some books certain passages purported to be the statutory provisions relative to fire insurance, which indicated to plaintiff and induced the belief that he had no forcible claim against the defendant; that the plaintiff relied upon said representations; that the claim adjuster knew they were false and misleading."

To the plea of fraud interposed by the plaintiff, as above shown, the defendant answered by general demurrer and several special exceptions, all of which were by the court overruled.Thereupon the case proceeded to trial with a jury, and at the conclusion of the evidence the defendant moved for an instructed verdict, which was refused by the court, and its action excepted to.The case was thereupon submitted to the jury upon special issues, and after the verdict had been returned both parties moved for judgment.Defendant's motion was overruled and that of the plaintiff granted, and judgment was entered in his favor for the $400 claimed by him, with legal interest.After defendant's motion for new trial had been overruled, it prosecuted an appeal to this court.

The first assignment of error found in appellant's brief challenges the action of the trial court in refusing its peremptory instruction for a verdict in its favor.A number of reasons are advanced in the form of propositions under this assignment, which appellant claims required an instructed verdict in its favor.We have given them all careful consideration, but have concluded that we may properly dispose of the case upon the third proposition advanced.It is as follows:

"The undisputed facts adduced upon the trial of the cause show that M. D. Kinney came from Dallas to see Plummer, a sworn statement as to the origin of the fire, in which statement Plummer informed Kinney that he was of the opinion that the fire was occasioned by defective wiring in the bathroom, and Kinney then informed Plummer that inasmuch as the policy of insurance had a provision to the effect that the policy only covered Plummer's household goods while they were located at 1850 South Neches street and nowhere else, and that inasmuch as in Plummer's opinion the fire at the house on Harriott street, to which Plummer had moved the goods without securing permission from the company, or without notice to the company, and that inasmuch as in Plummer's opinion the fire was caused by defective wiring in the bathroom, it was his [Kinney's] opinion that he could not recover on said policy of insurance, and such expression being merely an opinion on the part of Kinney as to a pure matter of law, and Kinney not being an agent of Plummer, or in a fiduciary capacity, such representation, if relied upon by Plummer, would not give Plummer the right, as a matter of law, to set aside the compromise agreement, or the right to recover against the defendant."

The undisputed testimony in this case, as we find it in the record, shows the following facts:

At the time of the issuance of the policy of insurance here in question appellee's household goods and furniture were at his then home, which was located at No. 1850 South Neches street, in the city of Beaumont.At the time they were destroyed by fire on January 21, 1919, they were located at No. 394 Harriott street, in the city of Beaumont, to which location the appellee had moved with his family.There was a provision in the policy to the effect that appellee's household goods and furniture were insured while located at No. 1850 South Neches street, and not elsewhere.The fire which destroyed appellee's goods and furniture occurred about 60 days after appellee's removal to his new location.Appellee did not notify appellant of his removal to his new location, and appellant did not have any notice of that fact from any source and never consented to such removal.After the fire, which resulted in practically a total loss of appellee's goods and furniture, he made in due time proper proof of loss to appellant's local agents in the city of Beaumont, and these notices of loss were forwarded to appellant by said local agents, and thereafter appellant's claim adjuster, Myron T. Kinney, who, it seems, was located at Dallas, Tex., came to Beaumont on February 12, 1919, for the purpose of adjusting this loss with appellee, and on that day met appellee in Beaumont in the office of appellant's local agents, Smelker & Maxon, and there the whole matter was gone over between appellee and the adjuster, Kinney.Kinney stated to appellee that his loss was an honest one, and that it really exceeded the face value of the policy, but that the company was under no legal obligation or liability to pay the loss or any part of it, for the reason that the appellee had moved the insured goods and furniture from the location where they were insured to another and different location without notifying appellant or its local agents of that fact.For this reason alone Kinney positively denied liability under the policy, and appellee, after discussing the matter with Kinney and appellant's local agents, Smelker & Maxon, who were of the same opinion as Kinney with reference to the nonliability of the company, finally consented to accept $600 as payment and settlement in full of any claim he might have had against the insurance company under the policy, which, upon its face, was for the sum of $1,000.Thereafter, on March 14, 1919, appellant issued in favor of appellee its draft in the sum of $600 as settlement in full of the claim made by appellee under the policy of insurance.It recites upon its face that it "constitutes full satisfaction, compromise, and indemnity for all claims and...