Wagner v. Westchester Fire Ins. Co.

• Decision Date: 02 November 1898
• Citation: 48 S.W. 49
• Court: Texas Court of Appeals
• Parties: WAGNER et al. v. WESTCHESTER FIRE INS. CO.<SMALL><SUP>1</SUP></SMALL>

48 S.W. 49

WAGNER et al. v. WESTCHESTER FIRE INS. CO.¹

Court of Civil Appeals of Texas.

November 2, 1898.

Appeal from district court, Bexar county; Robert B. Green, Judge.

Action by Wagner & Chabot against the Westchester Fire Insurance Company. Judgment for defendant. Plaintiffs appeal. Affirmed.

Summerlin & Walling and Ed Haltom, for appellants. Swearingen & Brooks, for appellee.

JAMES, C. J.

The case as last tried was upon a changed petition, in which plaintiffs, Wagner & Chabot, alleged that the goods insured belonged to Kloak Bros. & Co.; that, as agents of Kloak Bros. & Co., they and appellee's agent contracted for a fire policy with reference to the goods, the same to be insured for Kloak Bros. & Co., and that defendant's agent, by mistake, wrote the name of plaintiffs' firm in the policy as owners of the goods, and plaintiffs, by mistake and oversight, accepted such policy without knowing that it failed to truly state the ownership of the goods, and that, thinking and believing the ownership was correctly stated in said policy, they placed the same in a fireproof safe for safe-keeping, and never examined the same again until after the fire; that the policy does not express the terms of the contract as agreed upon, in this: that it fails to state that the property insured was the property of Kloak Bros. & Co., but erroneously states the ownership to be in plaintiffs; that plaintiffs had nothing to do with the writing of the policy, but that the same was written by defendant's agent, or by some one in his office; and that, if the statement of plaintiffs' ownership of the goods was not put in by mistake, then it was done for the purpose of avoiding liability on the policy, and was a fraud on said Kloak Bros. & Co., which was not discovered or known by plaintiffs or said Kloak Bros. & Co. until after the loss by fire; and that plaintiffs would not have accepted if they had known the ownership was not truly stated, nor would they have paid the premium. The prayer is that the policy be reformed so as to show the true ownership of the goods insured, and for judgment for the use and benefit of Kloak Bros. & Co. for the amount of the policy. The court overruled general and certain special demurrers to this pleading, but when plaintiffs' evidence was in, showing substantially the facts as alleged, the court directed a verdict for the defendant. It seems that the court allowed defendant to introduce in evidence plaintiffs' former petitions with reference to the issue of limitations; and...