Norwood v. Alamo Fire Ins. Co.

• Decision Date: 04 April 1896
• Citation: 35 S.W. 717
• Parties: NORWOOD v. ALAMO FIRE INS. CO.
• Court: Texas Court of Appeals

35 S.W. 717

NORWOOD v. ALAMO FIRE INS. CO.

Court of Civil Appeals of Texas.

April 4, 1896.

Appeal from Johnson county court; F. E. Adams, Judge.

Action by the Alamo Fire Insurance Company against P. J. Norwood and others for failure to cancel a policy as instructed. From a judgment in favor of plaintiff, defendant Norwood appeals. Reversed.

This suit was brought in the county court of Johnson county by the Alamo Fire Insurance Company against P. J. Norwood and Sid Norwood, of and composing the firm of P. J. Norwood & Son, and Brown Douglas and S. B. Allen, on October 3, 1893. Plaintiff, among other things, alleged that on and prior to July 25, 1893, P. J. and Sid Norwood were engaged in the business of acting as local agents for insurance companies under the firm name of P. J. Norwood & Son, and under such name were the local agents of plaintiff in said Johnson county, and as such agents, on said July 25, 1893, issued plaintiff's policy No. 220,698 to one A. G. Jones, insuring him against loss or damage by fire to one certain brick house situated in Cleburne, Tex.; that at said time plaintiff was engaged, and still is engaged, in insuring property against loss or damage by fire under certain forms of policy; that on September 13, 1893, plaintiff ordered said P. J. Norwood & Son to cancel said policy; that said P. J. Norwood & Son carelessly and with great lack of care for the interest of plaintiff neglected to cancel said policy; that afterwards, about November 1, 1893, a fire occurred in the building insured by said policy; that afterwards said A. G. Jones instituted suit on said policy against plaintiff in the county court of Johnson county, and in said suit and court recovered judgment against plaintiff for $310.50, with cost of suit; that plaintiff was compelled in said suit to pay attorneys in amount $50, and cost of suit, $20. Plaintiff also had a count against P. J. Norwood as its sole agent in Johnson county, and for negligence as stated above. Plaintiff also had counts against the other defendants, Brown Douglas and S. B. Allen, as sureties on bond of P. J. Norwood & Son for faithful performance of their duties as plaintiff's agent. Defendants filed a general denial. The case was tried on April 6, 1895, before a jury, and resulted in a verdict in favor of plaintiff against the defendant P. J. Norwood for $300, the amount of policy, and interest at 6 per cent per annum from January 1, 1895, and in favor of all the other defendants; upon which verdict the court rendered judgment. Defendant P. J. Norwood filed his motion for new trial, which being overruled, he perfected his appeal to this court.

Poindexter & Padelford, for appellant. W. S. Essex, for appellee.

FINLEY, J. (after stating the facts).

It was shown that appellant was acting as the agent of the insurance company under the following appointment: "This certifies that P. J. Norwood & Son, of Cleburne, in the county of Johnson, state of Texas, have been appointed and duly constituted agents of the Alamo Fire Insurance Co., of San Antonio, Texas, with full power to receive policies for insurance against loss and damage by fire in Cleburne, Texas, and vicinity, to receive moneys, and to countersign, issue, renew, and consent to the transfer of the policies of insurance, subject to the rules and regulations of said company, and such instructions as may from time to time be given by its officers. In testimony whereof the said Alamo Fire Insurance Co., of San Antonio, Texas, has caused this commission to be signed by its president and countersigned by its secretary, in the city of San Antonio, Texas, this 24th day of May, A. D. 1893. [Seal.] F. Groos, President. S. D. Scudder, Secretary." It was shown that as such agents Norwood & Son had procured the issuance of the policy of insurance upon the building owned by A. G. Jones. The insurance policy contained, among other things, the following provision: "In any matters relating to this insurance, no person, unless duly authorized in writing, shall be deemed the agent of this company. This policy shall be canceled at any time at the request of the insured, or by the company or its agents, by giving written or verbal notice of such cancellation. If this policy shall be canceled, as hereinbefore provided, or become void or cease, the premium having been actually paid, the unearned portion shall be returned on surrender of this policy or last renewal; this company retaining the customary short rate, except when this policy is canceled by this company by giving written or verbal notice it shall retain only the pro rata premium, and pay the balance to the assured on the surrender of this policy to the company. This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements, or conditions as may be indorsed hereon or added hereto, and no officer, agent, or other representative of this company shall have power to waive any provisions or conditions of this policy, except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto; and as to such provisions and conditions no officer, agent, or representative shall have such power, or be deemed or held to have waived or held such provisions or conditions, unless such waiver, if any, shall be written upon or attached hereto. Nor shall any privilege or permission affecting the insurance under this policy exist or be changed by the assured unless so written or attached." It was further shown that the insurance company directed P. J. Norwood to cancel the policy issued to said Jones, and that Norwood failed to have the policy canceled; that the fire occurred that burnt the building, and the insurance company was forced by suit to pay the amount of insurance upon the building provided for in the policy.

The sixth and eighth assignments of error complain of the admission of testimony introduced by plaintiff to show negligence on the part of Norwood in failing to cancel the policy. Plaintiff placed Hiram Hall upon the stand as a witness, and, after proving by him that he had acted as local fire insurance agent for six or seven years, asked him this question: "Suppose you had received notice to cancel a policy, and the policy holder resided out in the country, what would you do in the matter?" (The policy holder in this case was shown to reside some eighteen miles in the country.) To which the defendants objected, for the reason that plaintiff could not prove, and defendants would not be responsible for, what the witness would have done under the circumstances, that no basis...