Springfield Fire & Marine Ins. Co. v. Whatley

Decision Date08 December 1925
Docket Number(No. 3132.)<SMALL><SUP>*</SUP></SMALL>
Citation279 S.W. 287
PartiesSPRINGFIELD FIRE & MARINE INS. CO. v. WHATLEY.
CourtTexas Court of Appeals

Appeal from District Court, Smith County; J. R. Warren, Judge.

Action by H. A. Whatley against the Springfield Fire & Marine Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The suit was by Whatley against the insurance company, on a policy issued by the latter February 22, 1923, insuring the former in the sum of $1,500 against the loss by fire before noon of February 22, 1924, of a described dwelling house in the city of Tyler, and in the sum of $800 against the loss of specified household goods. By the terms of the policy, in the absence of an agreement to the contrary indorsed thereon or added thereto, it was to be void —

"if the interest of the insured in the property be other than unconditional and sole ownership, or if the subject of insurance be a building on ground not owned by the insured in fee simple."

Such an agreement was never indorsed on, or added to, the policy, and in its answer the insurance company alleged as a defense against the recovery sought by Whatley that the dwelling house did not belong to him but to the separate estate of his deceased wife, who died intestate and left children surviving her, and that Whatley's interest therein "was not sole and unconditional," and alleged further that Whatley "did not own the ground in fee simple on which said dwelling was situated." With reference to the household goods, the insurance company alleged that they too belonged to the separate estate of Whatley's deceased wife, or, in the alternative, to the community estate between her and Whatley. The allegations of Whatley were that he was the sole and unconditional owner of the property, but, if he was not, that the insurance company —

"waived the clause in said policy providing that, in the event he was not the sole and unconditional owner that said policy should be void, and in this connection plaintiff alleges that defendant's agents were fully apprised and given full information as to the condition of the title to said property, and with full knowledge as to the condition of such title issued said policy of insurance to this plaintiff in his name and received the premium for same; wherefore plaintiff says that the defendant is estopped from claiming a forfeiture of said policy, if it should be found that plaintiff is not the sole and unconditional owner of the property covered by said insurance policy."

It appeared without dispute in the testimony heard at the trial that the land on which the dwelling house was situated belonged to the separate estate of Whatley's first wife, who died in December, 1918, and that the household goods belonged to the community estate between Whatley and his said wife, that Whatley and his said wife, with the children, lived in the dwelling house on the land, and used the property as their home for many years prior to her death, and that, after her death, until the house was destroyed by fire as stated, Whatley, first with said children and afterward with them and his second wife, continued to live in the house and use the land as a home. It further so appeared that on February 22, 1919, the insurance company, acting by Will Niblock, its agent, issued a policy insuring Whatley in the sum of $1,200 against loss before February 22, 1920, of the dwelling house by fire, and in the sum of $600 against the loss of household goods therein; and each year thereafter, to and including the year 1923, acting by said Niblock, or one of his partners, as its agent, issued a similar policy to Whatley, except that the one issued February 22, 1923 being the one sued on, was (as before stated) for the sum of $1,500 on the dwelling house and $800 on the household goods. There was testimony the jury had a right to believe that, at the time the policy of February 22, 1919, was issued, Whatley told Niblock "that the place (quoting) then belonged to the children," that it was given to their mother by her father, and "was their home." Special issues as follows (answers as indicated) were submitted to the jury:

"(1) At the time of the issuance of the policy sued on herein, had Will Niblock been informed that the lot (with dwelling thereon) upon which the house covered by the policy sued on was situated had been given to plaintiff's deceased wife by her father and was then claimed by the children of plaintiff and his deceased wife? Answered: Yes.

"(2) At the time of the issuance of the policy in question, had Will Niblock been informed that the children by the plaintiff's deceased wife owned an interest in the personal property covered by said policy? Answered: Yes.

"(3) What was the actual market value of the personal property described in plaintiff's petition, and that was destroyed by fire, at the time and place it was destroyed? Answered: $1,200.

"(4) Was the dwelling house totally destroyed by fire as alleged? ...

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5 cases
  • Lee v. Mutual Protective Ass'n of Texas
    • United States
    • Texas Court of Appeals
    • 29 Enero 1932
    ...(Tex. Civ. App.) 2 S.W.(2d) 539; Springfield Fire, etc., Co. v. Brown (Tex. Civ. App.) 13 S.W.(2d) 916; Springfield Fire, etc., Co. v. Whatley (Tex. Civ. App.) 279 S. W. 287; National Fire Ins. Co. v. Carter (Tex. Com. App.) 257 S. W. 531; Western Assur. Co. v. Hillyer-Deutsch-Jarrett Co. (......
  • American Ins. Co. v. Maddox, 1348.
    • United States
    • Texas Court of Appeals
    • 4 Mayo 1933
    ...Co., 92 Tex. 549, 50 S. W. 569; St. Paul Fire & Marine Ins. Co. v. Kitchen (Tex. Com. App.) 271 S. W. 893; Springfield Fire & Marine Co. v. Whatley (Tex. Civ. App.) 279 S. W. 287, par. 1, and cases there cited. It is clear that in 1929 while appellant was carrying a policy on the property i......
  • United States Fire Ins. Co. of New York v. Farris
    • United States
    • Texas Court of Appeals
    • 30 Junio 1927
    ...of any property of which he was not sole owner. Crescent Ins. Co. v. Camp, 64 Tex. 521, 526-528; Springfield Fire & Marine Ins. Co. v. Whatley (Tex. Civ. App.) 279 S. W. 287, 288; Springfield Fire & Marine Ins. Co. v. Green (Tex. Civ. App.) 36 S. 143, 144; Home Insurance Co. of New Orleans ......
  • Franklin Fire Ins. Co. v. Shadid
    • United States
    • Texas Supreme Court
    • 14 Marzo 1934
    ...Com. App.) 284 S. W. 920; St. Paul Fire & Marine Ins. Co. v. Culwell (Tex. Com. App.) 62 S.W.(2d) 100; Springfield Fire & Marine Ins. Co. v. Whatley (Tex. Civ. App.) 279 S. W. 287; U. S. Fire Ins. Co. v. Farris (Tex. Civ. App.) 297 S. W. 575; Fraser v. Rogers (Tex. Civ. App.) 56 S.W. (2d) 9......
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