National Fire Ins. Co. v. Oliver

• Decision Date: 13 June 1918
• Docket Number: (No. 1894.)
• Parties: NATIONAL FIRE INS. CO. v. OLIVER.
• Court: Texas Court of Appeals

204 S.W. 367

NATIONAL FIRE INS. CO. v. OLIVER.

(No. 1894.)

Court of Civil Appeals of Texas. Texarkana.

June 13, 1918.

Rehearing Denied June 27, 1918.

Appeal from District Court, Upshur County; J. R. Warren, Judge.

Action by Richard Oliver against the National Fire Insurance Company. From judgment for plaintiff, defendant appeals. Affirmed.

Mrs. May Croley was the agent at Gilmer of the Northern Assurance Company and also of appellant. It appeared from the testimony of appellee as a witness that prior to December 23, 1915, he requested Mrs. Croley "to take his insurance and keep it up for him," and that she agreed to do so. On said December 23, 1915, acting for said Northern Assurance Company, Mrs. Croley issued a policy insuring, in the sum of $2,500 and for a period of one year from that date, a stock of general merchandise and the building same was in, in Graceton, belonging to appellee, against loss by fire. The policy so issued was delivered to appellee. April 13, 1916, said assurance company repeated a request it had before made to Mrs. Croley to cancel all "outside risks" she had written for it, meaning by "outside risks" policies she had written on property situated elsewhere than in Gilmer. April 14, 1916, Mrs. Croley took up with one Nisbet, an agent of appellant authorized to act for it, the matter of appellant's taking over the risks carried by the assurance company which she had been directed to cancel. Nisbet agreed for appellant that it would take over several of the risks, among them the one on appellee's property in Graceton, and, as evidence of the agreement so far as appellee's property was concerned, delivered to Mrs. Croley a statement in writing dated said April 14, 1916, as follows:

"I have authorized $2,500 written in National Insurance Co. through Gilmer, Texas, agency on bldg. and stock gen. mdse. located s/s Main St., Graceton, Tex., belonging to Richard Oliver. Rate 5.22. Recommended net line $1,000. Lower on account of removal of bldg.

                    "[Signed] F. A. Nisbet, Special Agent."
                

Intending same to take the place and to be in lieu of the policy issued as stated by said assurance company to appellee, which she had been directed to cancel, Mrs. Croley, on April 17, 1916, as she had been authorized by Nisbet acting for appellant to do, and as she had declared to him on said April 14th she would do, issued a policy in appellant company for a like sum as the one issued by said assurance company, insuring said stock of merchandise and building against loss by fire for a period of one year from that date. The property so insured was destroyed by fire on the night of April 18, 1916. April 19, 1916, Mrs. Croley for the first time advised appellee that the assurance company had directed her to cancel the policy she had issued to him December 23, 1915, and that on April 17, 1916, she had rewritten the risk in the appellant company. Appellee thereupon delivered the assurance company's policy to Mrs. Croley, and she delivered the policy she had written in the appellant company to him. The assurance company and appellant, respectively, having denied liability on the policy issued by it, appellee commenced a suit against each of them. At his instance the suits were consolidated and tried as one suit, the trial resulting in a judgment for the amount of the policy in appellee's favor against appellant, and that appellee take nothing by his suit against the assurance company. Appellant alone appealed.

Locke & Locke, of Dallas, for appellant. Simpson, Lasseter & Gentry, of Tyler, for appellee.

WILLSON, C. J. (after stating the facts as above).

In support of the complaint made here that the trial court erred when he refused to instruct the jury to find in appellant's favor, it is insisted that it conclusively appeared from the testimony:

(1) That the policy issued by appellant was not to be effective until the one issued by the Northern Assurance Company was canceled. We agree it so appeared.

(2) That the policy issued by said assurance company had not been canceled when the fire occurred. The policy contained a provision that it might "be canceled at any time at the request of the insured, or by the company by giving five days' notice of the cancellation." It was not pretended that appellee had requested the assurance company to cancel the policy, or that that company had effected a cancellation thereof by giving the notice specified. The contention on the part of appellee was, it seems, that Mrs. Croley acted for him when she arranged with...