United States Fire Ins. Co. v. Fife

• Decision Date: 10 March 1928
• Docket Number: (No. 11933.)
• Citation: 6 S.W.2d 211
• Parties: UNITED STATES FIRE INS. CO. OF NEW YORK v. FIFE et al.
• Court: Texas Court of Appeals

6 S.W.2d 211

UNITED STATES FIRE INS. CO. OF NEW YORK v. FIFE et al.

(No. 11933.)

Court of Civil Appeals of Texas. Fort Worth.

March 10, 1928.

Rehearing Denied April 14, 1928.

Appeal from District Court, Parker County; F. O. McKinsey, Judge.

Action by T. W. Fife and another against the United States Fire Insurance Company of New York. Judgment for plaintiffs, and defendant appeals. Affirmed.

E. G. Senter, of Dallas, and H. M. Harrington, of Fort Worth, for appellant.

Grindstaff, Zellers & Hutcheson, of Weatherford, for appellees.

DUNKLIN, J.

The United States Fire Insurance Company of New York has appealed from a judgment rendered against it in the sum of $2,000 in favor of plaintiff T. W. Fife and T. A. Wythe, executor of the estate of T. C. Hart, deceased.

The cause of action alleged in the plaintiffs' petition was a parol contract of insurance against fire loss on a house situated in the town of Weatherford, owned by plaintiff Fife, and against which plaintiff Wythe, as executor of the estate of Hart, deceased, held a mortgage lien, and by the terms of the judgment Wythe was decreed the sum of $591.28 to satisfy that lien; the balance of the $2,000 being decreed to plaintiff Fife.

The statement of facts shows that C. R. Davis & Son, local agents at Weatherford for the United States Fire Insurance Company of New York, on the 22d day of August, 1925, issued to plaintiff Fife a fire insurance policy upon a dwelling house situated in Weatherford in the sum of $2,000, by the terms of which the building was insured for one year from the 22d day of August, 1925, at noon, to the 22d day of August, 1926, at noon. The record further shows that the house was entirely destroyed by fire on the 29th day of August, 1926, some seven days after the expiration of that policy.

The suit was based on allegations that on or about the 30th day of July, 1926, the defendant entered into a parol agreement with plaintiff Fife to renew the former insurance policy for the full amount of $2,000 and for a period of one year beginning August 22, 1926, and ending August 22, 1927; plaintiff Fife agreeing to pay to the defendant the required and customary premium for that class of insurance. It was further alleged that the defendant also agreed with Fife to issue a renewal policy embodying the same terms and conditions as were contained in the written policy then in force, including what is known as the "vacancy clause"; the renewal policy to bind the defendant to the payment of $2,000 in the event the house should be wholly destroyed by fire during the life of the policy. It was further alleged that the vacancy clause should provide for insurance upon the house during a period of three months' vacancy, the same as in the policy then in force, in consideration for which Fife was to pay an increased premium.

Among others, the insurance policy which expired August 22, 1926, contained these provisions:

"This policy is made and accepted subject to the foregoing stipulations and conditions, and to the following stipulations and conditions printed on back hereof, which are hereby specially referred to and made a part of this policy, together with such other provisions, agreements, or conditions as may be indorsed hereon or added hereto; and no officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy, except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto; and as to such provisions and conditions no officer, agent, or representative shall have such power or be deemed or held to have waived such provisions unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached. * * *

"This policy may by renewal be continued under the original stipulations, in consideration of premium for the renewal term, provided that any increase of hazard must be made known to this company at the time of renewal or this policy shall be void."

It was further alleged in plaintiffs' petition that there was no increased hazard at the expiration of that policy, save and except the temporary vacancy of the house, which was well known to the defendant's agents at the time they, on behalf of defendant, entered into said parol agreement for renewal, and that notwithstanding such vacancy the risk of fire loss was covered by the vacancy clause.

The case was tried before a jury, who rendered an affirmative finding in answer to the following special issue:

"Issue No. 1. On or about the 30th day of July, 1926, as alleged by plaintiff, and prior to the 22d day of August, 1926, did C. R. Davis & Son, or either of them, as agents or agent of the defendant United States Fire Insurance Company of New York, in consideration of the regular premium to be paid by plaintiff, have an understanding and made an unconditional agreement with plaintiff to renew the certain $2,000 fire insurance policy dated August 22, 1925, being the same that has been introduced in evidence in including what has been referred to and explained as a `vacancy clause' in this case?"

One of the defenses specially pleaded by the insurance company was to the effect that prior to August 22, 1926, the defendant's agent, C. R. Davis & Son, notified the plaintiff Fife that his insurance policy would soon expire, and that it was then and there agreed by the agent and Fife that should the latter elect to renew the policy he would so inform the agent; that Fife failed to give any instructions for such a renewal, although the agent by letters more than once called his attention thereto, with the request for information as to his desire in the matter.

That defense was submitted to the jury in special issue No. 2, which, with their finding thereon, is as follows:

"Issue No. 2. Prior to the expiration of said fire insurance policy, which occurred August 22, 1926, was it agreed and understood by and between the plaintiff and defendant's said agents or either of them, in substance, that a renewal of said policy was not to be issued until and unless plaintiff should notify them to issue the same? Answer: No."

The record shows that plaintiff Fife, who owned the property in controversy, lived in the city of Dallas and that he occasionally took trips to Weatherford in order to look after the property. Fife testified that he had employed C. R. Davis & Son to procure renters for his property and to collect the rents therefrom. He further testified that he made the trip to Weatherford on July 30, 1926, and at that time he went to the office of C. R. Davis & Son,...