St. Paul Fire & Marine Ins. Co. v. Kitchen
| Decision Date | 06 May 1925 |
| Docket Number | (No. 643-4113.)<SMALL><SUP>*</SUP></SMALL> |
| Citation | 271 S.W. 893 |
| Parties | ST. PAUL FIRE & MARINE INS. CO. v. KITCHEN. |
| Court | Texas Supreme Court |
Action by H. W. Kitchen, guardian, against the St. Paul Fire & Marine Insurance Company. Judgment for plaintiff was affirmed by Court of Civil Appeals (256 S. W. 940), and defendant brings error. Affirmed.
E. G. Senter and Claude Westerfeld, both of Dallas, for plaintiff in error.
Bonner, Storey & Storey, of Vernon, for defendant in error.
In June, 1920, C. E. Foster purchased from one Kitchen, guardian, two certain lots situated in Odell, Wilbarger county, and on which were two business houses. As a part of the consideration, Foster executed in favor of Kitchen, guardian, four vendor's lien notes of $750 each. Foster conducted a mercantile business in one or both of the houses and a short time prior to February, 1921, he made to Sanger Bros. a general assignment of his assets for the benefit of his creditors, and in February, 1921, was declared a bankrupt, and M. E. Stevens of Wichita Falls was appointed trustee in bankruptcy. Stevens testified that he did not take charge of the buildings above mentioned for the reason that upon investigation he determined that the incumbrance was more than the buildings were worth and that he disclaimed as to the buildings, but there is nothing in the record to show when this disclaimer was made by him. Prior to the date of the assignment made by Foster, one Ross, as agent of Kitchen, had taken out a policy with one Hart, agent of plaintiff in error Insurance Company, for the protection of Kitchen's interest in the property. This policy was to expire March 9, 1921, and a few days prior thereto Hart, the agent of the Insurance Company, went to Ross, the agent of Kitchen, and informed him of the date of the expiration of the policy. It was agreed between Ross and Hart that a new policy should be issued upon the date of the expiration of the old policy, but it seems that neither of them knew who owned the property at that time. One Crane was occupying the building for mercantile purposes. It was agreed between Ross and Hart that they would see Crane with reference to the ownership and together they went to see him. Crane informed Ross and Hart that he had bought the building from Sanger Bros., but had not received his deed, and suggested that when he received the deed he would pay to Ross the amount of the premium that Ross was to pay Hart for the new policy. Upon this information, Hart, as agent of the Insurance Company, wrote the new policy with Crane as owner and with a clause protecting the interest of Kitchen as it might appear. Crane never received a deed to the property, and was dead at the time of the trial, and it is not disclosed as to the kind of contract for the purchase of the property that he had with Sanger Bros. The record does not disclose that any other change was made in the title to or occupancy of the premises prior to the fire which occurred in December, 1921. Hart, the agent, testified that at the time he wrote the new policy he knew that Foster had made an assignment. While Crane occupied one of the two buildings located on the lots, he collected rents on the other building and during that time made some substantial improvements on the lots. Kitchen, as guardian, brought suit against the Insurance Company on the policy, and it clearly appeared in the trial that his interests amounted to more than the full amount of the policy. Judgment was rendered in favor of Kitchen on the ground that the agent had waived the sole ownership clause, and on appeal to the Court of Civil Appeals at Amarillo this judgment was affirmed. 256 S. W. 940. Plaintiff in error, for the first time in the Court of Civil Appeals as an assignment of fundamental error, and here now, raises the proposition that the Insurance Company could not waive the provision of a statutory fire policy providing that...
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Lee v. Mutual Protective Ass'n of Texas
...(Tex. Com. App.) 284 S. W. 927; National Fire Ins. Co. v. Carter et al. (Tex. Com. App.) 257 S W. 531; St. Paul Fire & Marine Ins. Co. v. Kitchen (Tex. Com. App.) 271 S. W. 893. Southern Underwriters v. Jones (Tex. Civ. App.) 13 S.W.(2d) 435 (writ refused); Law v. Texas State Mutual Fire In......
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