Republic Underwriters v. Meyer

• Decision Date: 31 March 1939
• Docket Number: No. 13826.,13826.
• Citation: 127 S.W.2d 538
• Parties: REPUBLIC UNDERWRITERS et al. v. MEYER et al.
• Court: Texas Court of Appeals

127 S.W.2d 538

REPUBLIC UNDERWRITERS et al. v. MEYER et al.

No. 13826.

Court of Civil Appeals of Texas. Fort Worth.

March 31, 1939.

Rehearing Denied April 28, 1939.

Appeal from District Court, Montague County; Earl P. Hall, Judge.

Suit by Miss Susette Meyer and others against the Republic Underwriters and another to recover on a fire policy. From a judgment in favor of the plaintiffs, the defendants appeal.

Judgment affirmed.

Arthur P. Bagby and Smith, Goldsmith & Bagby, all of Austin, for appellant Republic Underwriters.

Darden, Burleson & Wilson, of Waco, for appellant A. B. Shoemake.

Donald & Donald, of Bowie, for appellee.

DUNKLIN, Chief Justice.

This suit was instituted by Miss Susette Meyer, and Mrs. Clara Donald, joined by her husband, Paul Donald, on a fire insurance policy, issued by "Republic Underwriters, A. B. Shoemake, Attorney", by the terms of which the Republic Underwriters insured "Trustees Pentacostal Church" against loss or damage by fire to a church building situated on Lot 6 and part of Lot 7, in Block 7, of the town of Bowie, Texas, and further described as being at No. 411 Toombs Avenue. The policy stipulated for payment of $1,250 in event of destruction of the house, designated as a church, by fire, in accordance with its provisions, and further that it was issued as a Standard Fire Insurance policy.

The policy embodied these provisions:

"This policy is made by Republic Underwriters, having special regulations lawfully applicable to its organization, policies and contracts of insurance, and such regulations shall apply to and form a part of this policy the same as if actually written or printed upon, attached or appended thereto. "Special Provisions.

"The Underwriters are organized and operating under the provisions of the Insurance Laws of Texas applicable thereto. Subscribers hereat are individuals, partnerships, and corporations, which have each executed an agreement, hereby made a part hereof, which vests in A. B. Shoemake, herein called `Attorney' power to make this policy contract for them.

"If at the time of any loss under this Policy, any other insurance shall be in force which shall cover specifically in two or more divisions and amounts upon any property covered in any one division and amount by this Policy, then this Policy shall be assumed to be written in like form to the Policy containing the greater number of divisions.

"But in case of non-concurrence in specific items only, all other policies of insurance shall be considered as concurring fully with this Policy, and the Carrier shall pay only its equitable share on that basis. If any policy in any other company covering the described property, or any part thereof, shall contain any condition of average, or co-insurance, this Policy shall be subject to the conditions of average or co-insurance in like manner."

When the policy was issued, the estate of Mrs. Susette Meyer, deceased, was the owner and holder of certain promissory notes, executed by the "Pentacostal Church of God", secured by mortgage lien on the lot described above, executed by the deacons of the "Pentacostal Assembly of God Church of Bowie, Texas", and at the time of trial there was approximately $1,500.00 due and unpaid on the notes secured. Attached to the policy at the time it was issued was a rider reading:

"Loss Payable Clause.

"It is agreed that any loss or damage ascertained and proven to be due to the assured under this policy shall be held payable to the Mrs. Susette Meyer Estate as interest may appear; subject, however, to all the terms and conditions of this policy, which are made a part hereof."

According to allegations in plaintiffs' petition, which were sustained by uncontroverted testimony introduced on the trial, Mrs. Susette Meyer was dead; she died intestate, owing no debts; no administration was had on her estate; plaintiffs, Miss Susette Meyer and Mrs. Clara Donald, wife of Paul Donald, are her only heirs. She died in the year 1933; the policy was issued March 14th, 1935; the loss payable clause was made in favor of "Mrs. Susette Meyer Estate", as a convenient designation of plaintiffs as her heirs and beneficiaries under that clause.

A judgment was rendered in favor of plaintiffs against Republic Underwriters, Waco, Texas, and A. B. Shoemake, Waco, Texas, its attorney in fact, jointly and severally, for the sum of $1,398.95, the same being for $1,250, the amount stipulated in the loss payable clause of the policy, with interest accruing thereon at the rate of six per cent per annum, from December 1st, 1935, to date of the judgment.

The defendants have appealed.

Following numerous exceptions to the petition and a plea of general denial, defendants pleaded as a special defense that the building had become vacant and unoccupied for more than ten days before the fire, and therefore under a special provision of the policy the same had lapsed and was of no further force or effect.

Another special defense pleaded was the alleged failure of plaintiffs to furnish proof of loss within 90 days after such loss, as required by the policy, as a condition of liability, and for that further reason, no recovery could be had.

There was a further plea of tender to plaintiffs of the amount of premiums that defendant had collected on the policy, which was alleged to be the full amount for which the defendants could be held in any event.

By supplemental petition, plaintiffs alleged failure and refusal of defendants to furnish to them blank printed forms of proof of loss, upon their application therefor, and an alleged consequent waiver by defendants of right to defeat payment for lack of such proof.

Findings of the jury on all of the several special issues submitted were favorable to plaintiffs and furnished a sufficient basis for the judgment rendered, if given effect.

Plaintiffs' amended petition, on which they went to trial, included these allegations:

"That on or prior to March 14th, 1933, certain individuals, partnerships and/or associations of individuals, whose names are unknown to your plaintiffs, but well known to the defendants, executed a power or powers of attorney to the defendant, A. B. Shoemake, authorizing the said A. B. Shoemake as such attorney, to execute contracts of insurance against loss by fire, conformable to the insurance laws of the State of Texas; that thereafter, said A. B. Shoemake, defendant herein, applied to the Board of Insurance Commissioners for the State of Texas for license to so execute and deliver policies of insurance against loss by fire, and that thereafter such license was duly issued to said A. B. Shoemake, as attorney for such subscribers, authorizing him for and in behalf of such subscribers, to issue policies of insurance against loss by fire, conformable to the insurance laws of the State of Texas, in the name of the defendant, `Republic Underwriters' by A. B. Shoemake, Attorney.

"Plaintiff further alleges that said `Republic Underwriters', with A. B. Shoemake as their duly authorized attorney, were organized and duly licensed, as aforesaid, under the provisions of Chapter Nineteen (19), Title 78, of the Revised Statutes of 1925; and in the alternative alleged, that if mistaken in that, that it was organized with A. B. Shoemake as attorney duly authorized, and duly licensed as aforesaid under the provisions of Chapter Twenty (20), Title 78, of the Revised Statutes of 1925."

Then follow allegations of the facts on which claim of liability was based, including allegation that the church was owned by the Pentacostal Church of Bowie at the time of the fire; the total loss of the building by fire on September 29th, 1935; also an endorsement on the policy reciting that it covered loss or damage by fire of a building situated on the lot above noted "while occupied as a place of public worship, and known as Trustees Pentacostal Church." With prayer for judgment against Republic Underwriters and A. B. Shoemake, jointly and severally.

In answer to plaintiff's original petition, the defendants filed a plea in abatement, verified by oath, by the defendant A. B. Shoemake himself, and also by Frank M. Wilson, attorney representing both defendants, from which we quote the following: "That the defendant, Republic Underwriters, herein is sued as an unincorporated joint stock association, and according to the allegations in the prayer of plaintiffs' original petition herein under the provisions of Chapter 19, Title 78 of the Revised Statutes of Texas, 1925, and as operating upon the so called Lloyds plan; that this defendant is not an unincorporated joint stock association, nor any such party as is described in plaintiff's petition; and is not authorized to do business or to sue or be sued as alleged in plaintiff's petition, but that this defendant is an inter-insurance or reciprocal exchange, organized under and doing business by virtue of the laws of the State of Texas, towit, Chapter 20, Title 78 of the Insurance Laws of the State of Texas, R.C.S.,1925, and that this cause should be abated by reason of the aforesaid facts."

Those allegations were adopted in answer to plaintiff's first amended original petition upon which the case went to trial, and also likewise duly verified by counsel for the defendants.

No proof was offered by either plaintiffs or defendants that the Board of Insurance Commissioners had ever issued to the Republic Underwriters a permit to execute fire insurance policies, as provided by Chapter 19, Title 78, Rev.Civ.St., beginning with Art. 5013, Vernon's Ann.Civ.St. art. 5013 et seq., or that any application had been made for such a permit.

Plaintiffs introduced in evidence a certificate of authority issued by the Board of Insurance Commissioners to Republic Underwriters, to exchange reciprocal or inter-insurance contracts of the character therein specified, with other underwriters, under provisions of Chapter 20 of Title 78. Vernon's Ann.Civ.St. art. 5024 et seq....