Scottish Union & Nat. Ins. Co. v. Clancey
| Decision Date | 26 January 1892 |
| Citation | 18 S.W. 439 |
| Parties | SCOTTISH UNION & NAT. INS. CO. v. CLANCEY. |
| Court | Texas Supreme Court |
Action by C. H. Clancey against the Scottish Union & National Insurance Company upon a fire insurance policy. Verdict and judgment for plaintiff. Defendant appeals. Reversed.
Crawford & Crawford, for appellant. R. E. Cowart and Wm. P. Ellison, for appellee.
The appellant issued to appellee a policy of insurance on March 27, 1884, for $1,000, on certain goods, described therein, and store fixtures, contained in a brick store in the city of Dallas. On May 12, 1884, while the policy was in force, the property insured was destroyed by fire. This suit was brought on July 25, 1884. The answer pleaded, in substance, that the suit was prematurely brought; that the loss was not payable until 60 days after proofs of loss had been furnished; that no such proofs were made; and, further, that an appraisement of the loss was demanded by the appellant, which the policy authorized, and which appellee declined to comply with. Plaintiff below pleaded that the defendant had waived proofs of loss and appraisement of the damages by a partial adjustment of the damage through its agent. The trial resulted in a verdict for appellee for the sum of $1,410.44. The defendant prosecutes this appeal, and assigns error.
The question which is decisive of the case is whether the compliance with the stipulations in the policy relating to the proof of loss by the assured, and the demand for an appraisement of the property destroyed, were waived by appellant. The policy provided that "in case of loss the assured shall give immediate notice thereof, and shall render to the company a particular account of said loss, under oath, stating the time, origin, and circumstances of the fire; the occupancy of the building insured, or containing the property insured; other insurance, if any, and copies of all policies; the whole value and ownership of the property, and the amount of loss or damage, — and shall produce the certificate, under seal, of a magistrate, notary public, or commissioner of deeds nearest the place of the fire, and not concerned in the loss or related to the assured, stating that he has examined the circumstances attending the loss, knows the character and circumstances of the assured, and verily believes that the assured has, without fraud, sustained loss on the property insured to the amount claimed by the assured." The policy also provided that "loss or damage to property partially or totally destroyed, unless the amount of said loss or damage is agreed upon between the assured and the company, shall be appraised by disinterested and competent persons, one to be selected by this company and one by the assured," etc. The report of the appraisers, it was provided, should be in writing and under oath, and constitute a part of the proofs required, and until such proofs were produced the loss was not to become due and payable.
That the parties entering into a contract containing the foregoing stipulations are bound by the same is well settled. Unless fraud, accident, or mistake is shown, the agreement...
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