Old Colony Ins. Co. v. Messer
| Decision Date | 17 September 1959 |
| Docket Number | No. 6274,6274 |
| Parties | OLD COLONY INSURANCE COMPANY, Appellant, v. S. D. MESSER, Appellee. |
| Court | Texas Court of Appeals |
Strong, Moore, Pipkin, Strong & Nelson, Gordon R. Pate, Beaumont, for appellant.
John H. Seale, Joe H. Tonahill, Floyd W. Addington, Jasper, for appellee.
The insurer has appealed from a judgment in favor of Inez Goldman on a policy of fire insurance in which S. D. Messer was named as the insured. Messer instituted the suit as sole plaintiff. Before trial, however, he and Mrs. Goldman joined as plaintiffs and represented in their joint petition that Mrs. Goldman was equitably entitled to the benefits of the policy of insurance. Upon a jury's verdict it was decreed that Messer take nothing, but that Mrs. Goldman recover of the insurance company the sum of two thousand dollars, the face value of the policy.
Mr. Messer procured the policy of insurance and paid the premium on it, but he at no time had an insurable interest in the insured property, a dwelling house which at pertinent times was owned, subject to one or more liens, by Inez Goldman and her husband, Clyde Goldman, as a part of their community estate. Mrs. Goldman was employed by Mr. Messer as housekeeper at the time the policy of insurance was issued. She and her husband had theretofore separated and were subsequently divorced. The insurance claim, loss having already occurred, was awarded to Mrs. Goldman in the divorce proceedings.
In their joint petition, the plaintiffs represented that the policy of insurance was procured and issued for the use and benefit of the Goldmans. They also pled that the insurance company had waived certain provisions of the policy and was estopped to deny the policy's validity, having issued the policy and accepted the premium on it with knowledge that the Goldmans owned the insured house and that Messer had no interest in it. The plaintiffs neither sought reformation of the contract nor alleged facts that would warrant reformation of it. The defendant answered by general denial, by sworn denial that the person with whom Messer dealt in procuring the policy was its agent, and by other special pleas. It pled Messer's lack of an insurable interest in the insured property and that the policy was therefore void. It also pled the following provision of the plicy in bar: 'This entire policy shall be void if, whether before or after a loss, the insured has willfully concealed * * * any material fact or circumstance concerning this insurance, or the subject thereof, or the interest of the insured therein.' '* * * liability hereunder shall not exceed the actual cash value of the property at the time of loss * * *; nor shall it exceed the interest of the insured * * *.'
The jury found, in substance and among other things: that S. D. Messer applied to Gene McCartney for the policy of insurance; that McCartney was acting as the defendant's agent when he 'took' Messer's application; that the defendant ratified and acquiesced in McCartney's actions and representations regarding the policy of insurance; that Messer informed McCartney that the Goldmans were the owners of the property described in the policy; that McCartney represented to Messer that the Goldman house could and would be insured by issuing the policy of insurance in Messer's name; that Messer believed and relied upon such representations; that Messer's said reliance resulted in 'plaintiffs not obtaining other insurance'; that Messer procured the policy of insurance for Mrs. Goldman's benefit. The jury failed to find from a preponderance of the evidence: that Messer was acting as Mrs. Goldman's agent in procuring the policy; that Messer willfully concealed any material fact concerning the insurance or the subject thereof or interest of the insured therein in procuring the policy of insurance; that Gene McCartney was acting as an agent of Mrs. Goldman and ...
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