Rio Grande Fire Ins. Co. v. Concordia Fire Ins. Co.

• Citation: 199 S.W. 824
• Decision Date: 05 December 1917
• Docket Number: (No. 5917.)
• Parties: RIO GRANDE FIRE INS. CO. v. CONCORDIA FIRE INS. CO.
• Court: Texas Court of Appeals

199 S.W. 824

RIO GRANDE FIRE INS. CO. v. CONCORDIA FIRE INS. CO.

(No. 5917.)

Court of Civil Appeals of Texas. San Antonio.

December 5, 1917.

Rehearing Denied January 9, 1918.

Appeal from District Court, Bexar County; J. T. Sluder, Judge.

Action by the Concordia Fire Insurance Company against the Rio Grande Fire Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Denman, Franklin & McGown and L. H. Browne, all of San Antonio, for appellant. Terrell & Terrell, of San Antonio, for appellee.

SWEARINGEN, J.

This is a suit by appellee, the Concordia Fire Insurance Company, against appellant, the Rio Grande Fire Insurance Company, to recover $1,000 alleged to have been paid by appellee to appellant by mutual mistake. Without a jury, the court rendered judgment against appellant for the sum sued for. There is no issue of fact. The cause was submitted to the court upon agreed facts, which agreement is before us and reads as follows:

"(1) That on or about September 9, 1913, and for some time prior thereto and at all times hereinafter mentioned, Fred C. Stockdell, of New Orleans, La., was the general state agent in Louisiana for the Rio Grande Fire Insurance Company, a corporation by and under the laws of the state of Texas, having its principal office and domicile in the city of San Antonio, in Bexar county, Tex., and was also the general state agent at said place for the Concordia Fire Insurance Company, a corporation by and under the laws of the state of Wisconsin, having its principal office and domicile in the city of Milwaukee in said state, and having a permit to do business in Texas, and for several other fire insurance companies, among them the Commercial Fire Insurance Company of Washington, D. C., and the German Fire Insurance Company of Peoria, Ill., and on September 9, 1913, plaintiff and defendant knew that he was such agent for the other, the Concordia learning that fact on that day from Stockdell's daily report concerning the hereinafter mentioned transaction.

"(2) That as such general state agent, said Stockdell had authority in each of said companies to write fire insurance on property throughout the state of Louisiana, issue the policies, collect the premiums, reinsure said risks in said company, or other companies, and to collect said reinsurance premiums, to inspect all property offered for insurance, and to adjust and settle all losses by drafts upon the companies; provided that if he insured any dwelling house to an amount exceeding one thousand dollars ($1,000) in the Rio Grande Fire Insurance Company he should at once reinsure such excess in some other company or companies, but such restriction was not known to the Concordia Fire Insurance Company.

"(3) That on or about September 9, 1913, the said Fred C. Stockdell, as general agent for the Rio Grande Fire Insurance Company, issued its policy of insurance No. twelve thousand nine hundred four (12904), in the sum of four thousand ($4,000) dollars, to one Don R. Wade, purporting to be upon a dwelling house stated to be in Gretna, La., insuring him against loss by reason of the destruction by fire of the premises described in said policy; and at the same time said Stockdell, as general state agent, as aforesaid, for the Concordia Fire Insurance Company, the Commercial Fire Insurance Company, and the German Fire Insurance Company, in the name of each issued and delivered to the Rio Grande Fire Insurance Company a reinsurance contract (in the form and substance hereinafter stated) by which each of said companies reinsured said Rio Grande Fire Insurance Company against loss by fire by the destruction of said dwelling house in the sum of one thousand ($1,000) dollars.

"(4) That the form and substance of said reinsurance contract so issued, omitting date and signature, by said Stockdell, as general agent for the Concordia Fire Insurance Company, was as follows, to wit:

"`Policy No. 31045.

"`Subject to the conditions of the New York standard policy, the Concordia Fire Insurance Co., of Milwaukee, Wisconsin, does reinsure Rio Grande Fire Insurance Company, as follows:

"`Amount reinsured, $1,000.00. Rate, $1.00, Premium, $10.00. Time, 3 years. Commencement, at noon Sept. 9th, 1913. Expiration, at noon Sept. 9th, 1915. Policy No. 12904. Insured at New Orleans, La., agency. On property of Don R. Wade, consisting of dwelling, 11th St. between Derbigny and Delhonde Sts., Gretna, La.

"`Subject to the same risks, valuations, indorsements (excepting transfers of location) assignments, and conditions as the original insurance and loss, if any, to be settled and paid pro rata with the reinsured and at same time and place and upon the same terms and conditions. It is a condition of this reinsurance that the reinsured company is to retain an amount of insurance in and or on the risk herein described above all reinsurance, equal to the amount of this policy, and failing to do so, this company shall not be liable for a greater amount than that retained by the reinsured company. Other reinsurance permitted without notice until required.'

"(5) That the usual and customary charge by fire insurance companies at the time and place of this insurance was one per cent. (1%) of the principal, or a total of forty ($40) dollars for four thousand ($4,000) dollars, and said Stockdell, as such general agent, at said time credited on his books to each of the four (4) companies named the sum of ten ($10) dollars, and he, at said time, by daily report notified each of said companies of said insurance and said reinsurance contracts.

"(6) That on October 7, 1913, said Fred C. Stockdell notified the Rio Grande Fire Insurance Company by letter that the property covered by said insurance policy had been totally destroyed by fire and, at the same time, said that an adjustment of the loss was being made and when completed he would furnish said Rio Grande Fire Insurance Company with the original proof and the said reinsurance companies with a copy thereof, and would then draw draft upon the Rio Grande Fire Insurance Company for the sum of four thousand ($4,000) dollars and mail to it drafts on the reinsuring companies, each in the sum of one thousand ($1,000) dollars, and that thereafter, on October 15, 1913, he mailed the proof of loss to the Rio Grande Fire Insurance Company and a copy thereof to each of the reinsuring companies, the copies showing a total loss by fire and that the ...