St. Paul Fire & Marine Ins. Co. v. Pipkin

• Decision Date: 18 December 1918
• Docket Number: (No. 1439.)
• Citation: St. Paul Fire & Marine Ins. Co. v. Pipkin, 207 S.W. 360 (Tex. App. 1918)
• Court: Texas Court of Appeals
• Parties: ST. PAUL FIRE & MARINE INS. CO. v. PIPKIN.

207 S.W. 360

ST. PAUL FIRE & MARINE INS. CO. v. PIPKIN.

(No. 1439.)

Court of Civil Appeals of Texas. Amarillo.

December 18, 1918.

Appeal from District Court, Ochiltree County; W. R. Ewing, Judge.

Action by Knox Pipkin against the St. Paul Fire & Marine Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

E. C. Gray, of Higgins, and Lattimore, Bouldin & Lattimore, of Ft. Worth, for appellant.

R. T. Correll, of Ochiltree, Coffee & Holmes, of Miami, and Hendricks & Mood, of Amarillo, for appellee.

BOYCE, J.

Suit was brought by appellee, Knox Pipkin, against appellant insurance company on a policy insuring certain oat and wheat crops against damage from hail. Said policy sued upon insured "Knox Pipkin against loss or damage to the following described growing crops from hail, between the 19th day of May, 1917, m., and the 15th day of September, 1917, at m., * * * on all interest in one hundred acres winter wheat, on section 54, block R, not to exceed $10.00 per acre, on all interest in seventy-six acres oats on section 54, block R, not to exceed $10.00 per acre, etc." Said policy provided that it was subject to the conditions printed on the following page thereof, one of such conditions being the following:

"That in case of total destruction of the crops herein specified by hail, the amount insured per acre shall be paid by the company and that in case of a partial damage the company will pay the same percentage of the amount insured per acre as the grain destroyed bears to the crop had no damage by hail occurred — thus if one half of the crop insured is destroyed the company will pay one half of the amount of insurance per acre, etc."

Plaintiff alleged that during the term of the policy the oat crop was totally destroyed by hall and the wheat crop suffered a damage of 90 per cent. He sued for and recovered $10 per acre, or $760, on account of total destruction of the oats, and $9 per acre or $900 damages to the wheat. The provisions in the policy referred to were treated as fixing the value of the property, and no allegations or proof were made as to the actual value of the grain.

Appellant's first assignment is based on the proposition that the policy was only a contract of indemnity, that the plaintiff could therefore only recover the actual loss sustained, and that he should be required to show the actual value of the grain destroyed. The parties to an insurance contract may agree upon the value of the property insured and the specific amount to be paid for its loss or damage from the cause insured against, and in the absence of fraud such agreed valuations are conclusive. R. C. L. vol. 14, p. 1305, § 479; Cyc. vol. 19, p. 836; Borden v. Hingham Fire Ins. Co., 18 Pick. (Mass.) 523, 29 Am. Dec. 614; Buffalo Elevating Co. v. Prussian National Insurance Co., 64 App. Div. 182, 71 N. Y. Supp. 922, quoting from Wood on Insurance, § 43. The policy sued on, as we construe it, attempts to fix by agreement the value of the grain crop per acre, and provides for payment for loss and damage on the basis of such value. There does not appear to us to be any repugnancy between the terms of the two clauses of the contract which we have quoted. Construed together, they seem to be entirely consistent and clearly express the meaning indicated above.

Under the second assignment appellant complains that the court refused to give a peremptory instruction in its favor on the ground that a binding agreement for compromise of plaintiff's claim had been made. The appellant pleaded that after the damage occurred on, to wit, "July 19, 1917, plaintiff contracted in writing with defendant for a compromise and settlement of plaintiff's alleged claim against defendant, which is the subject of this suit, whereby plaintiff agreed to accept of defendant $704.00 in full and complete settlement of this alleged claim against defendant and pursuant to said contract defendant tendered to plaintiff said sum, and said contract and tender is still in full force and effect." To this answer the appellee replied that the compromise agreement was entered into on the mistaken belief that he was only entitled, under the terms of the policy, to recover the actual value of the crop; that this belief was induced by false representations to that effect, relied upon by him, made by the adjuster of the company at a time when the policy was not accessible for inspection.

The evidence shows that some time after the damage from hail the adjuster of the appellant came to see appellee in reference to adjusting the damage. Appellee testifies that the adjuster agreed with him that the oats were a total loss, but that said adjuster represented that the policy provided only for payment of the actual loss, and that he (the adjuster) estimated such loss, based upon the actual value of the wheat and oats destroyed, to be $4 per acre, and that this was all that could be paid under the terms of the policy. It also appears from the evidence that this conversation occurred out in the field; that the appellee did not have the policy at the time and had not read it carefully and believed the statements made to him by the adjuster. The adjuster claimed to be in a hurry, and, after the conversation just detailed, appellee signed an instrument, which appears to be in the nature of a claim or proof of loss, and in which the total amount of the claim was stated to be $704, based on 40 per cent. damage on 100 acres of wheat and 76 acres of oats. This instrument was not read over by appellee, and only the statement of the per cent. of damage was filled in; the agent stating that he would fill in the other blanks later. As stated above, the instrument appears to be simply a claim which states the issuance of the policy, description of the grain insured, the occurrence of the hailstorm, and amount of damage and claim on account thereof. Following the signature of the plaintiff, it contained this statement, signed by the adjuster:

"After a careful examination of the property damaged by hail, so far as necessary to determine the true and actual loss, I hereby certify that the above claim is just and true, according to the best of my knowledge and judgment and no more than the insured is entitled to receive."

This claim was dated July 19th, and thereafter, on August 15th, the appellant tendered to the appellee draft for $704, which appellee refused to accept. Appellee testified that within a few days after he signed this claim he read his policy, concluded that he was entitled to settlement on the basis of the valuation of $10 per acre for the grain and that he would not accept $704, and so notified the company by letter in about two weeks after the conversation with the adjuster.

We think, under these facts, that there are at least two reasons why a peremptory instruction in favor of the appellant, based on the ground that there was a binding written agreement for settlement made as pleaded, would not have been proper:

First, because the evidence does not conclusively show that any such agreement was made; the alleged written agreement referred to was not in terms any agreement at all. At most, it could only be impliedly a proposal or offer to accept the sum stated in settlement of the amount for which the claim was made. It is elemental that, in order to constitute a binding agreement or contract, there must have been an acceptance by the other party, the insurance company here, so that it too became bound. No acceptance of this offer, if it be one, is conclusively shown prior to the tender to the appellee of the draft for $704. The evidence was sufficient to have justified the conclusion that the offer of appellee was withdrawn by a letter to the company, some time prior to the tender of the draft. If the offer was withdrawn prior to its acceptance, then, of course there was no agreement for settlement.

Second, because the evidence is sufficient to make an issue as to whether the appellee had the right to have such settlement agreement, if one was made, set aside on account of the mistake as to his rights under which it was made. Insurance Co. v. Findley, 29 Tex. Civ. App. 494, 68 S. W. 695; Moreland v. Atchison, 19 Tex. 308; Ramey v. Allison, 64 Tex. 703; Altgelt v. Gerbic, 149 S. W. 236; Smith v. Jones, 192 S. W. 798; West v. West, 9 Tex. Civ. App. 475, 29 S. W. 244; Lott v. Kaiser, 61 Tex. 665; Hudson v. Glens Falls Ins. Co., 218 N. Y. 133, 112 N. E. 728, L. R. A. 1917A, 482; Pomeroy, Equity Jurisprudence, §§ 849, 850. This mistake, according to appellee's testimony, was not one purely of law, but both law and fact; that is, as to the terms of the contract itself as well as the construction thereof. This mistake was induced by the representations of the appellant's agent, who had, or might be presumed to have, superior knowledge as to such matters. Failure of the appellee to consult the policy to refute the statements so made might, under the circumstances, be justified. Under the rules as announced by the authorities referred to particularly as stated by Pomeroy, whose statement is often quoted by the authorities, including some of those cited by us, we think the facts sufficient to make an issue for submission to the jury.

Appellant, by the third assignment, asserts that it was entitled to a peremptory instruction because the evidence shows that no proof of loss was made as required by the insurance policy. This provision was as follows:

"The assured shall, within sixty days after the loss, unless such time is extended by the secretary of this company, make proof of loss under oath, stating the date and number of his policy, a description of the land upon which the grain was damaged by hail; date of loss or damage, the percentage of damage done to grain on each piece of land; a failure by the assured to give notice or make proof of the loss within the time herein specified shall cause a forfeiture of any claim under this policy. No denial...