Wagner v. Westchester Fire Ins. Co.

• Decision Date: 03 April 1899
• Parties: WAGNER et al. v. WESTCHESTER FIRE INS. CO.
• Court: Texas Supreme Court

50 S.W. 569

WAGNER et al. v. WESTCHESTER FIRE INS. CO.

Supreme Court of Texas.

April 3, 1899.

Error to court of civil appeals of Fourth supreme judicial district.

Action by Wagner & Chabot against the Westchester Fire Insurance Company. A judgment for defendant was affirmed in the court of civil appeals (48 S. W. 49), and plaintiffs bring error. Reversed.

Summerlin & Walling, Ed Haltom, and Franklin, Cobbs & McGown, for plaintiffs in error. Swearingen & Brooks, for defendant in error.

BROWN, J.

Wagner & Chabot sued the insurance company upon a policy of insurance, alleging, in substance, that they were the local agents of Kloak Bros. & Co., of Cincinnati, Ohio, in the city of San Antonio, and that they procured the policy of insurance sued upon to be issued for the benefit of Kloak Bros. & Co., for whose use the suit was instituted and prosecuted. The petition described the goods insured, and alleged the making of the contract of insurance with the agent of the defendant insurance company at San Antonio; that the agent of the insurance company was informed at the time application was made for insurance that the property sought to be insured belonged to Kloak Bros. & Co., and was in the possession of Wagner & Chabot as their agents. It was alleged that the agent agreed to insure the goods for Kloak Bros. & Co., but, through mistake, or with the intent to defraud them, made the policy payable to Wagner & Chabot. The petition set out the circumstances of the destruction of the goods by fire, their value, and the performance of all the conditions necessary to render the company liable to pay the amount, if the policy is valid, and concluded with the following prayer: "Wherefore plaintiffs have thus brought this suit, and, the defendant having answered and appeared, plaintiffs pray that said policy of insurance be so reformed as to show the true ownership of the said goods as insured by the parties of the said contract, and that they, for the use and benefit of said Kloak Bros. & Co., have judgment against the defendant company for the sum of $2,000, with interest and costs, general and special relief." The defendant filed a general denial and special pleas setting up: (1) That the policy sued upon contained the provision, among other things, "that the entire policy should be void if the interest of the plaintiff in the property insured thereunder were not truly stated therein"; that the policy was made and accepted by plaintiffs subject to said condition and stipulation, and that the interest of the said plaintiffs was not truly stated therein, but the said goods were owned by Kloak Bros. & Co., of Cincinnati, Ohio, and were held by the plaintiffs under a contract, to be sold by them on commission, for which reason the defendant claimed that the said policy was void. (2) That the said policy contained, among other things, a stipulation as follows: "That the entire policy, unless otherwise provided by agreement indorsed on or added to said policy, should be void if the entire interest of the plaintiffs in the property insured thereunder were other than unconditional and sole ownership." The defendant averred that the title of the plaintiff was not that of unconditional and sole ownership, as stipulated, but that the property in fact belonged to Kloak Bros. & Co., of Cincinnati, Ohio, and was held by the plaintiffs to be sold on commission. The answer alleged that it was provided in the said policy "that no officer, agent, or representative of defendant should have power to waive any provision or condition of said policy except such as by the terms of said policy might be made the subject of agreement indorsed thereon or added thereto, and that as to such provision or condition no officer, agent, or representative should have such power, or be deemed to have waived such provisions or conditions, unless such waiver, if any, should be written upon or attached to the said policy"; and that no waiver of the said provisions was written upon or attached to the said policy. The defendant, by supplemental answer, set up that the plaintiffs, Wagner & Chabot, had ratified the contract, if it was made by mistake, and were estopped from setting up any other contract, and that they had full opportunity to know the contents of the said policy, and were estopped to deny the contents thereof.

On the trial the policy was introduced, which contains the usual clause binding the insurance company to insure Wagner & Chabot for the term of one year from the 1st day of October, 1892, at noon, to the 1st day of October, 1893, at noon, against all direct loss or damage by fire, except as therein provided, to an amount not exceeding $2,000, to the property described as follows: "On their stock of bar fixtures, consisting of counters, mirrors, glassware, silver and plated ware," etc. After providing for the manner of reporting and proving the loss and other things, the policy contains the following provisions: "This entire policy shall be void * * * if the interest of the insured in the property be not truly stated." Likewise the following: "This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void * * * if the interest of the insured be other than unconditional and sole ownership." The following provisions of the policy bear upon the question to be decided: "If, with the consent of this company, an interest under this policy shall exist in favor of a mortgagee, or any person or corporation having an interest in the subject of insurance other than the interest of the insured as described herein, the conditions hereinbefore contained shall apply in the manner expressed in such provisions and conditions of insurance relating to such interest as shall be written upon, attached to, or appended hereto. * * * This policy is made and accepted subject to the foregoing stipulations and conditions, 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 or conditions, unless such waiver, if any, shall be written upon or...