Orient Ins. Co. v. Wingfield

• Decision Date: 12 February 1908
• Citation: 108 S.W. 788
• Parties: ORIENT INS. CO. v. WINGFIELD.
• Court: Texas Court of Appeals

108 S.W. 788

ORIENT INS. CO. v. WINGFIELD.

Court of Civil Appeals of Texas.

February 12, 1908.

Rehearing Denied March 25, 1908.

Appeal from District Court, Tom Green County; J. W. Timmins, Judge.

Action by A. T. Wingfield against the Orient Insurance Company. From a judgment for plaintiff, defendant appeals. Judgment reformed and affirmed.

Crane & Gilbert for appellant. Hill & Lee, Rhodes S. Baker, and F. M. Etheridge, for appellee.

FISHER, C. J.

This is a suit by the appellee against the insurance company to recover the sum of $2,000, with interest, on a contract for the renewal of a policy covering $1,000 on stock of merchandise, including drugs, notions, etc., and $1,000 on soda fountain, mirrors, attachments, etc., located in a building on a certain lot in the city of San Angelo. The property described was covered by an insurance policy issued by the appellant on March 28, 1904, which expired March 28, 1905, in favor of the Lee Wilson Drug Company. On August 16, 1904, the appellee, Wingfield, bought all the stock of goods, consisting of drugs, etc., and property covered by the policy of insurance from the Lee Wilson Drug Company, and at that time he made an agreement with Mr. Ions, the agent of appellant, that the policy could be transferred to Wingfield, which was done. At the time of this transfer the plaintiff contends that there was an agreement entered into between him and the agent Ions, for a renewal of the policy on the same terms and same premium, covering the same property, when it would expire on March 28, 1905. It is also claimed by the plaintiff that on the day before the policy expired he and the agent Ions had a further understanding with reference to the policy, and it was expressly agreed that the policy should be renewed on a 3 per cent. premium. It seems that this policy was never actually renewed according to either of these agreements by the issuance of a policy in lieu of the old one and the delivery thereof to Wingfield. On March 1, 1906, a fire occurred, which destroyed the property previously described as covered by the old policy. The trial court in its charge to the jury submitted to them the question whether there was an agreement and contract entered into in August for the renewal of the old policy, and also whether there was an agreement and contract entered into in March for a like renewal of the old policy, and instructed the jury that, if they should find in favor of the appellee on either of these contracts, then to return a verdict in favor of appellee for the amount sued for, with interest from the time that the fire occurred. In response to these instructions a verdict was returned for the appellee for the sum of $1,940, with interest.

It is contended by appellant that neither of the supposed agreements entered into constitute a contract of renewal, and as to the supposed agreement of March 27th the evidence shows that the minds of the parties never met, consequently there was no mutuality. It is also contended that no premium was paid. As to the latter contention we desire to say that it does not appear from the terms of the policy that payment of premium in money or cash was made essential to its validity; and there is nothing upon the face of the policy that limits the right of the agent representing the insurance company to contract for insurance on a credit. There is nothing upon the face of the policy that absolutely requires a policy or a contract of insurance to be in writing, and there is no provision avoiding the policy, if the premium is not paid. Upon the subject of payment of premium the testimony of the plaintiff, Wingfield, leaves that question in some doubt; that is, as to whether there had been a settlement between him and Ions as to the premium. But it appears from the amount of the verdict that the jury must have allowed the appellant credit for the amount of premium due. The plaintiff in his petition offered to allow this sum. Ions' testimony is to the effect that the premium was not paid. But the plaintiff testified that Ions had been in the insurance business in San Angelo ever since the plaintiff had lived in that city, where he seems to have resided for a number of years; that the custom of doing business between him and Ions was that Ions drew policies for him and collected when he felt disposed to present the bill; that plaintiff would pay when he felt disposed to; that Ions was a customer of his in the drug business, and that a method of offsetting premium accounts with drug accounts had existed ever since plaintiff had been in business for himself at the Central Drug Store, which was some years before he purchased the Wilson stock; that his relations with Ions were friendly, and still were; that Ions was the agent of the Orient Company when plaintiff bought the Wilson stock; that he carried its blank policies and issued policies, and that the old custom of doing business still existed between him and Ions after plaintiff bought the Wilson stock with respect to Ions keeping up the plaintiff's policies and issuing them and collecting and offsetting bills for premiums against plaintiff's bills against him; that Ions' office was in plaintiff's store; and that Ions agreed to renew Wilson's policies at their expiration. It seems from the evidence: That there were three policies on the Wilson stock when the plaintiff bought it, one of which was the policy in the appellant's company. The other two policies were renewed by Ions, but he failed to renew the policy in question. Ions was the local agent of the Orient Insurance Company in San Angelo, and had been for about 20 years. That he was the agent of many other insurance companies; and the evidence shows that he had the authority to make contracts of insurance and to issue policies and to renew policies, accept risks, and collect premiums, and, in fact, to perform the duties generally exercised by insurance agents.

In addition to the facts, as stated, we set out the following evidence, which justifies the conclusion that the contracts for a renewal of the policy in question were entered into between the appellee and the agent Ions:

As to the first agreement the witness Ions testified as follows: "Q. At the time of the transfer of the Orient policy (from Wilson Drug Company to Wingfield) did not you and Mr. Wingfield have an agreement that all of the policies which were transferred to him by the Lee Wilson Drug Company, and which had been written by you, were to be kept up and renewed as they expired? A. Yes. Q. Is it not true that at the time of said transfer you asked him about the policy on the soda fountain written in the defendant company, and now sued upon in this action, and he told you that he wanted you to keep that policy up and renew it, and that you agreed to do so, and that he explained to you the reason why it was important to keep up that policy? A. Yes. Q. Is it not a fact that you understood from the negotiations between you and Mr. Wingfield at the time that the transfer was made of the Orient Insurance policy by the Lee Wilson Drug Company, and the assent of the company thereto, about August 16, 1904, that you were to keep up said policy by renewal at its expiration? A. Yes. Q. Had Mr. Wingfield been out of town at the expiration of said policy, and you say that you would have renewed the same, then is it not a fact that you would have renewed it under an agreement and understanding with Mr. Wingfield made by you at the time of the transfer of the Lee Wilson Drug Company? A. Yes. Q. When you have instructions to renew a policy, for what length of time is your renewal written? A. For one year. Q. What are the terms when you write a new policy like the old one; or do you write a new one? A. Write a new policy. Q. But it contains the same terms? A. Just exactly. Q. One is the duplicate of the other? A. Yes, sir. Q. And the expiration is the same? A. Yes, sir. Q. For the same length of time as the old one? A. Yes, sir. Q. If Mr. Wingfield had not been in San Angelo on the 28th day of March, 1905, would you or not have renewed that policy? A. I would have renewed it emphatically without question. Q. Is it not a fact that during the five or six years which you have been writing insurance for Mr. Wingfield, both while he was part owner in the Central Drug Store and during the time he was running his own drug store, that you and he ran open accounts, you buying from him drugs and druggist articles, and he from you insurance? A. Yes. Q. Is it not true that during this time you would have settlements or partial settlements, one crediting the account in the payment of the account of the other? A. Yes. Q. Is it not a fact that these accounts or partial payments were made at irregular intervals? A. Yes. Q. Is it not true that after Mr. Wingfield bought out the Wilson drug store that you also kept your office with him, and rents thereafter, as a rule, were paid in insurance? A. Yes; but my rent was more often paid direct in money, as insurance policies were only written once a year. Q. Is it not a fact that the policy in the Orient Insurance Company sued upon in this case is of the regular New York standard form? A. Yes. Q. Mr. Ions, that commission you speak of giving you authority to renew policies—will get you to state what was the customary rule of renewing policies; that is, did you issue new policies, or issue certificates? A. I reissued policies. There are no certificates at all. Fire insurance policies are reissued. Q. And that is what that was intended to be? A. Yes, sir. Q. You have already described how you actually carried on your business under your commission with the company in your depositions? A. Yes, sir."

Plaintiff Wingfield testified: "Q. Will get you to state, Mr. Wingfield, whether you had any agreement or understanding with this company through Mr. Ions with respect to renewing this policy when it should expire? A. Yes, sir. Q. State what that agreement...