Universal Automobile Ins. Co. v. Hallinan, 8870.

• Decision Date: 12 October 1932
• Docket Number: No. 8870.,8870.
• Citation: 54 S.W.2d 199
• Parties: UNIVERSAL AUTOMOBILE INS. CO. v. HALLINAN.
• Court: Texas Court of Appeals

54 S.W.2d 199

UNIVERSAL AUTOMOBILE INS. CO. v. HALLINAN.

No. 8870.

Court of Civil Appeals of Texas. San Antonio.

October 12, 1932.

Rehearing Denied November 16, 1932.

Error from County Court at Law, No. 2, Bexar County; George G. Clifton, Judge.

Action by N. T. Hallinan against the Universal Automobile Insurance Company. Judgment for plaintiff, and defendant brings error.

Affirmed.

Eskridge & Groce, of San Antonio, for plaintiff in error.

Hull & Oliver, of San Antonio, for defendant in error.

FLY, C. J.

This cause was instituted by defendant in error to recover insurance on a Cadillac sedan in the sum of $1,000. Plaintiff in error admitted the contract of insurance but alleged that the policy was obtained by fraud and misrepresentation, and pleaded a tender of all premiums paid by the insured. The cause was tried by the court, without a jury, and judgment was rendered in favor of defendant in error for the sum of $1,000.

The court found the following facts which are adopted by this court:

"Plaintiff, N. T. Hallinan, on the 24th day of April, A. D. 1930, was approached by an agent of the defendant for the purpose of selling the said N. T. Hallinan a fire and theft, etc., policy of insurance on his automobile. The said agent at said time solicited said insurance from the said N. T. Hallinan, and at that time the said agent was informed that a former theft insurance policy issued to plaintiff had been canceled on the said automobile, he being informed by the said N. T. Hallinan at said time. The said agent at that time inspected and looked over the said automobile which was there at the place where the solicitation was made. After inspecting and looking over said automobile the said agent sold plaintiff, N. T. Hallinan, the fire and theft insurance policy sued upon herein. At the time the policy of insurance was sold, the said N. T. Hallinan made no representations to said agent of the Universal Automobile Insurance Company.

"In a day or two after the above transaction, an agent of the defendant, insurance company, delivered said insurance policy to plaintiff and received payment therefor, and at that time the said automobile was standing in front of the house and an agent again saw same, and was requested by plaintiff, Hallinan, to again inspect or look over same.

"Hallinan paid the following for the Cadillac automobile: $500 cash, and one Nash sedan, 1928 model, on the 15th day of February, A. D. 1930.

"Said Cadillac automobile which was insured was manufactured during late 1927 and 1928, a 314, 1928 model. After said Hallinan purchased said Cadillac automobile he put new tires on same and did considerable repairs. The actual cash value of the Cadillac automobile in question at the time it was stolen, and it was stolen, as alleged and never returned, was $1,200.

"The agent of the insurance company relied upon his own investigation at the time he sold plaintiff, Hallinan, the fire and theft policy as to the value of the said automobile, and at said time the said agent knew and was informed of the former insurance having been canceled."

The policy was obtained through the suggestion and aid of O. B. Krezdorn,...