Southern Mut. Fire Ins. Co. of Yoakum v. Mazoch Bros.

• Decision Date: 12 January 1927
• Docket Number: (No. 7053.)
• Citation: 291 S.W. 257
• Parties: SOUTHERN MUT. FIRE INS. CO. OF YOAKUM v. MAZOCH BROS.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

Page 257

291 S.W. 257

SOUTHERN MUT. FIRE INS. CO. OF YOAKUM v. MAZOCH BROS.^*

(No. 7053.)

Court of Civil Appeals of Texas. Austin.

January 12, 1927.

Rehearing Denied February 2, 1927.

Appeal from District Court, Williamson County; Cooper Sansom, Judge.

Action by Mazoch Bros. against the Southern Mutual Fire Insurance Company of Yoakum. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

Luke Mankin, of Georgetown, Henry S. Paulus, of Yoakum, and Edwin Sehorn and John Sehorn, both of San Antonio, for appellant.

Wilcox & Graves, of Georgetown, and Wood & Wood, of Granger, for appellees.

McCLENDON, C. J.

Appeal from a judgment upon a special issue verdict in favor of appellees against appellant, in a suit brought by the former against the latter upon a fire insurance policy covering a gin and gin machinery.

The sole defense was that the policy was void because appellees had violated the concurrent insurance clause reading:

"This entire policy, unless otherwise provided by agreement, indorsed hereon or added hereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance, whether valid or not, on the property covered in whole or in part by this policy."

Appellees plead that this provision of the contract had been waived by one Beeson, who procured the insurance and who was the duly authorized agent of the company.

Appellant's first contention is that the evidence does not warrant a finding of waiver because Beeson had no authority to bind the company, he being only a soliciting agent with authority to solicit applications, inspect the property to be insured, report on the risk, and transmit applications to the home office, where policies were written and whence they were delivered and premiums collected. We sustain appellant's contention that the authority of Beeson, both actual and apparent, was only such as just stated.

The material facts on this issue, which, we find the evidence supports, follow.

Appellees resided at Granger and operated a number of gins, on which they carried insurance in various companies through a local insurance agency at Granger. These policies insured the property under various items, and the total amount of insurance in each policy was distributed over the several items in proportion to the total concurrent insurance allowed. Some time in the fall of 1923, Beeson, who was a traveling soliciting agent for appellant, went to Granger and endeavored to induce appellees to take out insurance with appellant. According to the testimony of appellee I. J. Mazoch, which is corroborated by other witnesses, appellees finally agreed to take out a $6,000 policy in appellant company on gin No. 1, to take the place of a policy in the Liverpool, etc., Company which would expire on December 23, 1923, the understanding being that appellant would issue its policy for the same amount as the Liverpool policy to take effect immediately upon its expiration. The question of additional insurance was discussed, and Beeson was informed that the policies on the property were not then in the office of appellees; that all of the insurance was carried by the local agency referred to, and offered to send to the local agency's office and get the amount of each policy, and also referred Beeson to the local agency. Beeson, however, stated that this was not essential and he did not want to go to the office of a competitor, and stated that as his company was a mutual company, it was not particular about the amount of concurrent insurance and always paid its losses, and that it was only necessary to state the approximate amount, and it would be sufficient to guess at it. Beeson examined an old policy which had expired several years before and took from it the total amount of insurance on the property, but was told at the time it was not correct. No written application was made by appellees, and the information upon which the policy was written was gained by appellant from report of Beeson. The policy was afterwards written by the company and forwarded direct to appellees, who made no examination of it as to the amount of concurrent insurance. It covered the period from December 23, 1923, to December 23, 1924, and provided for total concurrent insurance, including the policy thus issued, of $20,650. As a matter of fact, there was in existence at the time Beeson took the application, and at the time the policy went into effect, $21,250 insurance, including the Liverpool policy which expired on December 23, 1923, and for which the policy which appellant issued was substituted.

Some time during 1923, appellees made improvements on the gin, and took out additional insurance on the property to the extent of about $4,000.

Thereafter and while insurance to that extent existed on the property and shortly before the policy of December 23, 1923, expired, Beeson went to Granger and endeavored to write other insurance for appellant on appellees' property. At that time, according to appellee I. J. Mazoch's testimony, Beeson was informed by him that they had made improvements on the property and had taken out about $4,000 additional insurance thereon, and referred him again to the local agency for the total amount on the property. Beeson again informed appellees that the exact amount of insurance on the property was immaterial to his company and agreed to have the December, 1923, policy renewed when it expired. This policy was renewed for one year on December 23, 1924, by the issuance of another policy identical with the former, except as to the term it covered. It provided, as did the former, for total concurrent insurance of $20,650. No additional insurance was thereafter taken out.

The gin was destroyed by fire in January, 1925. The amount of the loss and extent of liability, if appellant is liable at all, were agreed upon.

Both parties have filed able briefs, citing numerous authorities. We think it is unnecessary to enter into a lengthy...