Providence-Washington Ins. Co. v. Owens

• Decision Date: 01 June 1918
• Docket Number: (No. 8868.)
• Citation: 207 S.W. 666
• Parties: PROVIDENCE-WASHINGTON INS. CO. v. OWENS.
• Court: Texas Court of Appeals

207 S.W. 666

PROVIDENCE-WASHINGTON INS. CO. v. OWENS.

(No. 8868.)

Court of Civil Appeals of Texas. Ft. Worth.

June 1, 1918.

Rehearing Denied October 26, 1918.

Appeal from District Court, Tarrant County; Bruce Young, Judge.

Action by Tom B. Owens against the Providence-Washington Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Thompson, Knight, Baker & Harris and Geo. S. Wright, all of Dallas, for appellant.

R. M. Rowland, Lassiter & Harrison, and McLean, Scott & McLean, all of Ft. Worth, for appellee.

BUCK, J.

Tom B. Owens sued the Providence-Washington Insurance Company, alleging in substance as follows:

1. That plaintiff was at the time of the transactions herein mentioned engaged in the business of buying, selling, and exporting cotton under the trade-name of Tom B. Owens & Co. On September 1, 1914, defendant entered into a contract with plaintiff, by the terms of which it insured him against loss at sea of any and all cotton that plaintiff might ship, and as a part of said contract defendant delivered to plaintiff certain certificates in writing, to be used by him in the course of his business of exporting cotton. That under said contract plaintiff might, whenever he was about to make a shipment of cotton by sea, issue said certificates covering said cotton, using for that purpose the forms placed in his hands, as aforesaid, and might thus render said general contract of insurance and special contracts, evidenced by the certificates so issued, operative for the protection of that particular cotton.

2. That on December 28, 1914, plaintiff issued certificates of the kind and character, aforesaid, insuring 11,000 bales of cotton, during a voyage on the ship Dacia from Galveston, Tex., to Bremen, Germany, which action on the part of plaintiff was in pursuance of his said contract with defendant.

3. That at about the time said cotton began to be loaded on the steamship Dacia at Galveston, about January 6, 1915, defendant, through its managing officers, particularly its president, J. B. Branch, its attorneys, Harrington, Bigham & Englar, and its agent, Edwin G. Seibels, deliberately and maliciously began and continued a course of conduct calculated and intended to thwart plaintiff in his efforts to make said shipment, and to enable defendant to evade its obligation under its said contract of insurance and force a cancellation of said policy. It was specially alleged that the officers and agents aforementioned falsely, maliciously, and slanderously represented to Max May, vice president of the Guaranty Trust Company of New York, that the certificates issued by plaintiff, covering the 11,000 bales of cotton, were unauthorized by defendant, and that defendant had no reinsurance on this risk, and that plaintiff had improperly issued certificates against this shipment in so large an amount as to endanger the solvency of the defendant company and the interests of the Guaranty Trust Company, which latter company had agreed with plaintiff to finance the Dacia shipment, and which then held the aforesaid certificates of marine insurance covering said cotton. It was further alleged that exporters of cotton were required, by the necessities of their business, to have shipments like this financed by bankers, which custom was well known to defendant. That plaintiff had arranged with the Guaranty Trust Company to finance said shipment, including the advancing or guaranteeing of the freight charges due the owner of the ship and the premiums for marine insurance. That on this shipment the freight charges, alone, amounted to $175,000. That on January 21, 1915, said shipment was ready to depart from Galveston, and the certificates were in the hands of the Guaranty Trust Company, and that by reason of the false and slanderous statements above mentioned made to Max May, acting for the Guaranty Trust Company, said trust company was caused to decline to advance the freight charges or to permit the Dacia to sail until the controversy was straightened out to its satisfaction. That about this time the plaintiff agreed and decided to change the destination of the voyage from Bremen, Germany, to Rotterdam, Holland, and so notified all parties interested, and sought to change said certificates in the hands of said trust company, so as to conform to the change of destination. That, under his contract, plaintiff had the right to make this change. But that defendant wrongfully and maliciously objected to and attempted to prevent this from being done, and to that end forbade the trust company to permit such change in the certificates. That such attempts of the defendant to interfere with the plaintiff's business and cripple him therein succeeded for a time, but by January 30, 1915, plaintiff prevailed upon said trust company to recognize his rights and finance such shipment and enable the same to leave Galveston.

4. It was alleged that said false and slanderous statements, made by the defendant's attorney Bigham, to Max May, aforesaid, were made with the full knowledge and notice of all the material facts and were authorized by the defendant company through its president. That such acts and conduct on the part of defendant were intended and calculated to interfere with the contractual relations then existing between the plaintiff and the trust company. That as the direct and proximate result, contemplated and expected by defendant at the time, from such willful and malicious wrongs, the plaintiff was damaged in the following respects and amounts:

(a) The sailing of said shipment was delayed for nine days, and the plaintiff lost the interest on his investment for said time, to his damage in the sum of $2,000.

(b) That plaintiff was caused and forced to incur great expense in the way of sending telegrams and telephones, and in the keeping of a man at Galveston to aid in removing all obstacles to the starting of the shipment, to plaintiff's damage in the sum of $1,500.

(c) That plaintiff became liable for demurrage on account of the detention of said ship for the said nine days, amounting to $9,000.

(d) That plaintiff's business as a cotton dealer was practically destroyed during said nine days, while the necessary expense of operation of his business during said time continued, for which plaintiff asked $10,000.

(e) That plaintiff's credit and reputation in the business world, in the cotton trade, and among bankers engaged in financing cotton transactions, were greatly injured, and he was caused to experience great annoyance, humiliation, and mental suffering, for which he asked $100,000.

(f) That he was entitled to exemplary damages in the sum of $50,000.

Defendant answered by a general demurrer and special exceptions, a general denial, and further pleaded in substance as follows:

That the statements alleged to have been made by defendant's agent to Max May were made to a person having a community of business interest with defendant and were made in good faith, and hence were privileged communications; that under the usage and custom of the business, and according to the course of dealing between the plaintiff and the defendant in regard to the shipments of cotton under said contract, where plaintiff desired to make a shipment upon a boat not named in the rate sheet or to a point not noted on the rate sheet, plaintiff furnished to the defendant, either personally or by his duly authorized agent, L. A. Wight & Co., an application for permission to ship on a given boat or to such unnamed port, and requested a rate for such shipment, etc. It was further alleged that during December, 1914, the war between Germany and her allies and Great Britain and her allies was in progress, and that the harbor of Bremen and the approaches thereto were mined and hedged about by warships of Great Britain and her allies, and that the steamship Dacia was a German steamship, owned and operated by German people under German registry at the outbreak of the war, and that the same was transferred after the beginning of the war to American registry; that it was a notorious fact, known to plaintiff, that it was the war policy of Great Britain and France to refuse to recognize any change of ownership and registry of boats from German registry to neutral registry after the outbreak of the war, and it was further known to plaintiff and to all others that Great Britain, France, and Russia had announced the intention of capturing and confiscating such boats as those that changed their registry. Other defenses were specially pleaded; but, in view of the conclusion reached by us, we do not think it necessary to further mention them.

The cause was submitted to a jury under special issues, and a verdict was rendered for plaintiff in the aggregate sum of $102,964.12, upon which verdict the court rendered judgment. The items making up this judgment were as follows:

Interest, $1,148.42; expenses for telegrams and telephones, etc., $202.90; demurrage for the nine days, $1,620; loss of net profits during said period, $10,000; injury to credit, standing, and reputation, $50,000; mental suffering, $25,000; exemplary damages, $15,000.

The record in this case is perhaps the most voluminous of any heretofore filed in this court. The transcript consists of 719 pages; the statement of facts of 445 pages; appellant's brief of 665 pages, including 121 assignments of error and numerous propositions under almost every one. Hence it will be readily recognized that the consideration of this appeal has called for the expenditure of much time and the examination of a multitude of authorities. It would be impracticable for us to attempt to discuss each assignment presented, and yet keep the opinion within proper limits. Nor do we find it necessary so to do, and will as far as possible group the assignments involving the same or kindred questions of law. For instance, the first seventeen assignments are directed to the action of the...