Republic Ins. Co. v. Watson

• Decision Date: 05 April 1934
• Docket Number: No. 2548.,2548.
• Citation: 70 S.W.2d 441
• Parties: REPUBLIC INS. CO. v. WATSON et al.
• Court: Texas Court of Appeals

Page 441

70 S.W.2d 441

REPUBLIC INS. CO. v. WATSON et al.

No. 2548.

Court of Civil Appeals of Texas. Beaumont.

April 5, 1934.

Rehearing Denied April 11, 1934.

Appeal from District Court, Shelby County; T. O. Davis, Judge.

Action by Mrs. Neoma Watson against the Republic Insurance Company, in which J. M. Wall, as executor of the estate of Mrs. N. J. Wall, intervened. From an adverse judgment, defendant appeals.

Affirmed.

Smithdeal, Shook, Spence & Bowyer, of Dallas, for appellant.

Dallas Ivey, of Center, for appellee.

O'QUINN, Justice.

Mrs. Neoma Watson, as plaintiff, sued appellant to recover upon a fire insurance policy in the sum of $1,000. This insurance policy had been issued by its agents Motley & Motley, at Tenaha, Tex., insuring a dwelling house in said town for the period of one year. The policy was issued January 8, 1932, and the house was burned October 28, 1932.

Appellant answered denying liability on the grounds: (a) That the premium for the policy had not been paid; (b) that the policy had been canceled because of nonpayment of premium long before the fire; (c) that said policy provided the insurance was effective only so long and while the building was occupied by the owner as a dwelling, and that it was not so occupied by the owner at the time of the fire, nor for more than 60 days prior thereto; and (d) that said policy provided that it should be void and of no force if the insured building was vacant for more than 30 days before the fire, and that said building was so vacant and unoccupied for more than 30 days prior thereto.

Plaintiff, appellee Watson, by supplemental petition replied that the premium was not paid at the time the policy was issued, but arrangements were made with appellant's agents, Motley & Motley, to pay the premium later, and the premium was so paid; she denied that the policy had ever been canceled; that when she paid the premium on September 8, 1932, appellant's said agents accepted said payment and retained same in no manner advising her that the policy had been canceled; and that if said policy had been canceled, or attempted to be so done, it was without notice to her and without her consent, and without returning to her the premium she had paid. She also denied that the insured premises had at any time been vacant, but said that shortly before the fire because of her personal illness it was necessary for her to, and she did, go to the home of her father, who resided at Joaquin, a few miles from Tenaha, to be cared for, but that all of her household goods, personal belongings, cow, and other property was left at her said home and that it was her intention to return to her home as soon as she could, and would have done so but for the house being destroyed by fire; that when she left to go to her father's she arranged with a friend and neighbor to look after and take care of her said place and property; that appellant's agents, Motley & Motley, knew that she was at the home of her father and why she was there; that they communicated with her by mail on August 19, 1932, sending her a statement of the amount of premiums she was due on said policy of insurance, and that on September 8, 1932, she sent the amount in full to said agents by her father, which said money they accepted and ever since kept without any mention that her said policy had been canceled; that she and her father were well known to Mr. Luke Motley and Jack Motley composing the firm of Motley & Motley, agents for appellant; that said agents were also engaged in and connected with the bank at Tenaha, and at the time she took out the insurance policy she made arrangements with them to pay the premiums at a later date through the bank, and that she left the policy with them to be kept in the bank for safe-keeping and never saw it afterwards; that had appellant or its said agents notified her that they had canceled her policy she could have, and would have, taken out other insurance to protect her said property, and that by their conduct in the premises appellant was estopped from insisting that said policy was canceled or that same was void by reason of her temporary absence which and the reason therefor were known to said agents; and she denied that said building was either vacant or unoccupied, and that appellant had waived the provisions of the policy as to vacancy and occupancy.

J. M. Wall, as executor of the estate of Mrs. N. J. Wall, intervened, setting up that there was a loss payable clause to the estate of Mrs. N. J. Wall, in the policy of insurance, alleging that said estate had and held a lien on the insured property, and prayed for judgment for the amount of the debt due the estate. Intervener also adopted the defensive pleadings of appellee, Mrs. Neoma Watson.

Appellant replied to these pleadings by various exceptions, and denied seriatim all the matters alleged in appellee's supplemental petition, denied that the premium had been paid, and pleaded the provisions of the policy relating to vacancy and occupancy.

At the conclusion of the evidence appellant requested an instructed verdict in its favor which was refused. The case was then tried to a jury upon special issues, in answer to which the jury found: (a) That the premium had been paid; (b) that said premium was paid on September 8, 1932; (c) that the policy was left with appellant's agents, Motley & Motley, for safe-keeping; (d) that said agents knew that the house was unoccupied; (e) that they acquired this information August 19, 1932; (f) that on August 9, 1932, said agents mailed notice to appellee, Mrs. Watson, that the policy had been canceled; (g) that Mrs. Watson did not receive said notice of cancellation. In response to special issues requested by appellant, the jury found: (a) That the house was unoccupied for more than 30 days before the fire; (b) and that the house was not occupied by the owner as a dwelling at the time of the fire.

Upon receipt of the verdict, appellant moved for judgment non obstante veredicto. This was refused. Judgment was rendered for appellees in the sum of $1,025; for Mrs. Watson, $791.67, and for intervener, $233.33. Motion for a new trial was overruled, and appellant appeals.

There are 38 propositions based upon 76 assignments of error. This opinion would be inordinately long if we were to discuss in seriatim all of the assignments or propositions, and we do not believe any good purpose could be served by so doing. So, we shall discuss only what we believe to be the controlling questions.

The policy in question was duly issued, and the jury found was left with Motley & Motley, appellant's agents, at Tenaha for safekeeping in the local bank of which one of said agents, Jack Motley, was cashier, and in which said bank said agents kept their office of insurance agency. Mrs. Watson was well known to said agents, as was her home which they insured. The premium was not paid at the time the policy was issued, but arrangements were made with said agents for the issuance of the policy and the premium was to be paid through the bank later. This seems not to be disputed. That the house was Mrs. Watson's private residence, and was so occupied by her at the time the policy was issued, is without dispute. That about August 15, 1932, she became ill and went to her father's home at Joaquin near Tenaha to be taken care of and that appellant's agents knew this seems certain. Also, that her absence was to be only temporary is not questioned. That s...