Phoenix Ins. Co. v. Ward

• Decision Date: 12 April 1894
• Citation: 26 S.W. 763
• Parties: PHOENIX INS. CO. v. WARD.
• Court: Texas Court of Appeals

26 S.W. 763

PHOENIX INS. CO. v. WARD.

Court of Civil Appeals of Texas.

April 12, 1894.

Appeal from district court, Jefferson county; Stephen P. West, Judge.

Action by A. J. Ward against the Phoenix Insurance Company upon a policy of insurance. Plaintiff obtained judgment. Defendant appeals. Affirmed.

Hobby, Lanier & Kirby, for appellant. Greer & Greer, for appellee.

GARRETT, C. J.

This is a suit upon an insurance policy to recover for the value of certain household goods destroyed by fire. By the terms of the policy sued on it was provided that if the assured was not the sole unconditional owner, and if his title was not complete to the property, or if the same was incumbered by mortgage, the policy was to be void. The defendant pleaded that it was not liable, because the policy was obtained by the plaintiff upon the representation at the time it was issued to the effect that plaintiff was the unconditional and sole owner of the property insured, and that the same was not incumbered by mortgage, when in fact the plaintiff was not the owner of the piano, — part of the property insured, — for that it was then mortgaged to Thomas Goggan & Bro. of Galveston. The court rendered judgment in favor of the plaintiff for the amount of the policy less the value of the piano.

The liability of defendant upon its contract of insurance was established if the defense set up was not sustained, or if the contract of insurance was divisible. Upon its face the policy insured the property in the aggregate for the sum of $1,450. No separate value is given to any of the items of the property insured. The property insured is described as "household furniture, useful and ornamental, kitchen furniture and utensils, etc., piano, organ, sewing machine, family supplies, and fuel." The policy is entire in form, and recites payment of an entire premium. There is credited on the policy $25 for a previous loss, which had been adjusted and settled at that sum. There was a chattel mortgage upon the piano for $550 in favor of Thomas Goggan & Bro. of Galveston at the time the policy was issued and at the time of the fire. Prior to the issuance of the policy sued on the plaintiff had separate policies of the defendant on the piano and the other property issued upon written applications; the one on the piano for $600, and that on the other property for $850. When these policies expired, S. R. Keen, who was the clerk of V. Wiess, the agent who issued them, inquired of plaintiff if he wished to renew the same. Plaintiff then declined to do so, but after two or three days, on reflection, told Keen to renew the insurance, and the policy sued on was issued. When it was presented to the plaintiff by Keen, plaintiff asked him if he ought not to put the piano in a separate policy from the furniture, and make it payable to Thomas Goggan & Bro. as their interest might appear. He replied that it made no difference. Plaintiff told Keen before he took the policy that the piano was mortgaged, and accepted his statement that the policy was all right, and paid the premium. The policy was issued on verbal application, as above stated. V. Wiess was the agent of defendant at Beaumont, and in Jefferson county. Keen was his clerk, and had been for more than three years, and did all the detail work of soliciting insurance, filling out policies, collecting...