Sun Mut. Ins. Co. v. Mattingly

• Decision Date: 02 May 1890
• Citation: 13 S.W. 1016
• Parties: SUN MUT. INS. CO. <I>v.</I> MATTINGLY <I>et al.</I>
• Court: Texas Supreme Court

13 S.W. 1016

SUN MUT. INS. CO.

v. MATTINGLY et al.

Supreme Court of Texas.

May 2, 1890.

Appeal from district court, Grayson county.

C. N. Buckler, for appellant. W. W. Wilkins, J. D. Woods, and J. T. Cunningham, for appellees.

GAINES, J.

This suit was brought on a policy of insurance executed by appellant to Henry & Dickerson on certain real and personal property. The appellees became the owners of the claim during the progress of the suit, and without objection made themselves parties plaintiff in the action, and prosecuted it to judgment in their favor. On the 29th of October, 1884, the insured property was destroyed by fire. The policy stipulated that "persons sustaining loss or damage by fire shall forthwith give notice thereof in writing to the company, and as soon thereafter as possible they shall deliver an account of their loss and damage, with all the particulars, as fully detailed as the nature of the case will admit, signed with their own hands; and they shall accompany the same with their oaths or affirmation declaring the said account to be true, and just when and why the fire originated, so far as they have reason to believe, and until such proof and declaration shall be produced the loss shall not be payable." On the 26th day of December, 1884, the assured furnished a proof of loss which was deficient. It failed to show in detail a description of all the personal property. On the 10th day of January following the company's agent wrote them a letter, of which the following is a copy: "The proofs of loss furnished by you to this company are wholly unsatisfactory as to the amount of your claim, even if this company was liable under the policy. The company, however, denies any responsibility under the policy by reason of material representations as to title and property being untrue, and for other reasons which the company will specifically set forth in answer to any suit you may institute on said policy. The company reserves all objects to your recovery in any form, and hereby expressly refuses to waive any rights of the company under the policy, and hereby notifies you of the fact, and leaves you to pursue such course as you may deem expedient." No other proof of loss was furnished to the company. Upon this state of facts, the court charged the jury that the letter was a waiver of the proof of loss. That charge is assigned as error. The majority of the court are of the opinion that the letter was a waiver. Their opinion is that the...