Republic Ins. Co. v. Dickson

• Decision Date: 22 February 1934
• Docket Number: No. 2504.,2504.
• Citation: 69 S.W.2d 599
• Parties: REPUBLIC INS. CO. v. DICKSON.
• Court: Texas Court of Appeals

69 S.W.2d 599

REPUBLIC INS. CO. v. DICKSON.

No. 2504.

Court of Civil Appeals of Texas. Beaumont.

February 22, 1934.

Appellee's First Motion Overruled March 7, 1934.

Appellee's Second Motion and Appellant's Motion Overruled March 14, 1934.

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

Suit by J. W. Dickson against the Republic Insurance Company. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Smithdeal, Shook, Spence & Bowyer, of Dallas (J. Louis Shook, of Dallas, of counsel), for appellant.

Dallas Ivey, of Center, for appellee.

WALKER, Chief Justice.

On the 9th day of July, 1932, appellant, Republic Insurance Company, issued and delivered to appellee, J. W. Dickson, its policy of fire insurance in the sum of $1,200 for a premium of $11.75 paid by appellee, whereby it insured for a period of one year against loss by fire appellee's certain dwelling house situated in the town of Teneha, Shelby county. When the policy was issued appellee and his family were occupying the house as their home. Shortly thereafter he and his family moved out of the house, and on July 14th following L. A. Rivers moved in as his tenant and so occupied the house until the 22d day of the next September when he moved out. From that day the house remained vacant until October 14, a period of twenty-two days, when it was totally destroyed by fire. Appellee brought this suit against appellant in the district court of Shelby county to recover the principal amount of the policy, interest, and costs of suit, pleading the issuance of the policy, the destruction of the house by fire, etc. Appellant answered by general and special demurrers and general denial and specially that the policy contained the following warranties which appellee breached, thereby rendering the policy absolutely void: (a) The insurance was effective on the house only "while occupied by owner and not otherwise as a dwelling"; (b) "this entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void * * * if a building herein described, be or become vacant for a period of exceeding ten days or unoccupied for a period of exceeding thirty days." To this answer appellee replied by pleas of waiver and estoppel; appellant answered by excepting to the sufficiency of these supplemental pleas. Judgment was for appellee for the amount sued for on the verdict of a jury finding that (a) the house in question was not occupied by the owner as a dwelling from July 15, 1932, until October 14, 1932, the date of the fire; (b) that the house was not occupied by the owner as a dwelling on October 14, 1932, the date of the fire; (c) the house was occupied by L. A. Rivers as a tenant of appellee "from fourteen days of July, 1932, to twenty-two days of October, 1932"; (d) the house was not vacant "for more than ten days next preceding October 14, 1932, the date of the fire"; (e) appellee's local agent, Jack Motley, knew that the house was not occupied by the owner; (f) this agent first acquired this knowledge on September 3, 1932; (g) this agent was not informed by appellee that the house in question was occupied by L. A. Rivers as his tenant.

The warranty covering the occupancy of the building was as follows: "$1,200.00 on the One story Shingle roof Frame Building and additions attached thereto, including foundations, permanent piping and fixtures for heating, lighting and water service, while occupied by owner (`owner' or `tenant') and not otherwise, as a dwelling."

It thus appears that the policy was to be effective while the occupancy was either by "owner" or "tenant," and therefore the insured did not breach the warranty by renting the house to L. A. Rivers and permitting him to occupy it as his tenant. The explanation for writing the policy in this form may be found in the following testimony of Mrs. Dickson, wife of appellee:

"Q. Mrs. Dickson, you are the wife of the plaintiff in this case, W. J. Dickson? A. J. W.

"Q. J. W.? A. Yes, sir.

"Q. Where do you live now, Mrs. Dickson? A. Gladewater, Gregg County.

"Q. On or about the 9th day of July, 1932, where did you live at that time? A. I lived in Tenaha.

"Q. Did you live in a house that is described here as being five blocks southeast of the square? A. Yes, sir.

"Q. Well, about that time, did you go and have a talk with Mr. Jack Motley about anything particular? A. I did.

"Q. About that house? A. I did.

"Q. Just tell the jury what it was. A. On the 9th day of July, I went to the bank and asked Jack Motley to insure my house, and he did.

"Q. Just go ahead and tell the jury what was said between you and he. A. He asked me when we were planning to move—we were planning to move to Gladewater, and I told him in just a few days—I did not know what day—and he asked—and I asked him to have my house insured, and he asked did I have anybody to go into it, and I said No, and he said `if I know or hear of anyone, I will bring them down', and he did on Monday or Tuesday of the next week—He brought Mr. Kamack down to my house—he ought to know when—On Saturday—and we moved on Thursday, I think, and it was Monday or Tuesday or Wednesday that Jack brought Mr. Kamack down there to the house.

"Q. Did you rent the house to Mr. Kamack? A. No, because he would have to go back to El Dorado.

"Q. Who did you rent the house to? A. Aubry River."

We overrule all assignments and propositions on the issue that the change of occupancy from "owner" to "tenant" breached one of the express warranties of the policy.

Under the statement made above the insured house was vacant a period of twenty-two days, from September 22d to October 14th. Appellant pleaded that it was vacant for that period of time, and appellee admitted the fact in his pleadings. The testimony was without controversy that it was vacant. Mrs. Dickson testified that, when she moved out in July, she left one old piece of furniture in the house, which was probably there when the house was burned. But her testimony was that she and her husband had moved to Gladewater, Gregg county, and there established their home. This testimony by Mrs. Dickson did not raise an issue that the house was not vacant, but only confirmed the testimony of all the other witnesses. 26 C. J. 215, title, "Fire Insurance," § 261. Notwithstanding this state of the pleadings and the evidence, the jury found, as above stated, that the house was not vacant "for more than ten days next preceding October 14, 1932, the date of the fire." On appellant's assignments against this finding it is set aside and the fact found, as it actually was, that the house was vacant from September 22d to October 14th.

This vacancy made the policy absolutely void. The law on this proposition is thus stated by 24 Tex. Jur. 958, art. "Insurance": "Undoubtedly, a contract of fire insurance validly may contain a provision that the policy shall be void, or that the insurer shall not be liable, if the building is vacant or unoccupied beyond a stated time."

The text is well supported by the following authorities: Galveston Ins. Co. v. Long, 51 Tex. 89; National Union Fire Ins. Co. v. Richards (Tex. Civ. App.) 278 S. W. 488; Commercial Union Assur. Co. v. Dunbar, 7 Tex. Civ. App. 418, 26 S. W. 628.

As the breach of the warranty against vacancy rendered the policy absolutely void, it was not necessary for appellant to plead tender or offer to return to appellee the unearned premium on his policy as part of and in connection with its plea of invalidity. In Phenix Ins. Co. v. Willis, 70 Tex. 12, 6 S. W. 825, 8 Am. St. Rep. 566, it was held that an insurance company "need not offer to return the premium paid on a policy before insisting on its invalidity by reason of breach of conditions contained in it." See, also, Alsup v. Hawkeye Securities Fire Ins. Co. (Tex. Civ. App.), 300 S. W. 223, 225; Interstate Fire Ins. Co. v. Sorrells (Tex. Civ. App.) 295 S. W. 242; Veal v. Fire Ass'n of Philadelphia (Tex. Civ. App.) 30 S.W.(2d) 715, 721; Phenix Ins. Co. v. Willis, 70 Tex. 12, 6 S. W. 825, 8 Am. St. Rep. 566; Connecticut Mutual Life Ins. Co. v. Rudolph, 45 Tex. 454. It follows under the proposition just discussed that the trial court correctly overruled appellee's exceptions to appellant's special answers of breach of warranties.

The controlling point in this case is whether or not appellant was estopped to assert the invalidity pleaded by it or whether or not it had waived the breach of the warranties thus pleaded. The special exceptions urged against appellee's pleas of waiver and estoppel, to the effect that they were indefinite and uncertain as to the facts and circumstances relied upon to constitute waiver and estoppel and as to the agency by which these acts were committed, should have been sustained; but the rulings thereon were immaterial, in that appellant was fully advised during the trial of all circumstances relied upon by appellee and of the names of the agents who committed the acts of estoppel, and because it further appeared that appellant had these very agents in court as witnesses in its behalf; and there is no suggestion of surprise or injury, resulting to appellant from the overruling of its special exceptions.

The additional facts in support of appellee's pleas of waiver and estoppel are as follows: Tenaha was a small town with a population of...