Webber v. Fidelity Lloyds of America

• Decision Date: 09 April 1925
• Docket Number: (No. 3054.)
• Citation: 271 S.W. 118
• Parties: WEBBER v. FIDELITY LLOYDS OF AMERICA.
• Court: Texas Court of Appeals

271 S.W. 118

WEBBER v. FIDELITY LLOYDS OF AMERICA.

(No. 3054.)

Court of Civil Appeals of Texas. Texarkana.

April 9, 1925.

Appeal from Dallas County Court; W. N. Coombs, Judge.

Action by C. W. Webber against the Fidelity Lloyds of America. Judgment for defendant, and plaintiff appeals. Reversed and rendered.

The suit was by appellant against appellee on a policy for $595, issued by the latter, insuring the former against loss of an automobile by fire or theft. The automobile was lost to appellant by theft. The policy contained a stipulation that the loss, if any occurred during its life, should be paid to the Dallas County State Bank "as its interest might appear"; and it appeared from testimony heard at the trial that appellee accordingly paid to the bank $264.70 (secured by a mortgage on the automobile) which appellant owed it at the time the car was stolen. The suit was for $330.30, the part of the $595 remaining unpaid. The defense urged by appellee to the recovery sought against it was predicated on the violation by appellant of a stipulation in the policy as follows:

"In consideration of a reduction in premium it is warranted by the assured that the automobile insured under this policy will be continuously equipped with a locking device known as Decker (approved by Underwriters' Laboratories, Inc., and bearing their label). The assured undertakes during the currency of this policy to use all diligence and care in maintaining the efficiency of said locking device, and in locking the automobile when leaving the same unattended."

Appellant's contention with reference to the stipulation was that appellee waived the violation thereof when, knowing of such violation, it paid the $264.70 to the bank, and also when, with knowledge of such violation, it required him, he charged, to make proof of loss of the automobile.

The trial was to the court without a jury. The appeal is from a judgment denying appellant the recovery he sought, and in appellee's favor for costs.

Allen Reed, of Dallas, for appellant.

Davis, Johnson & Handley, of Dallas, for appellee.

WILLSON, C. J. (after stating the facts as above).

The judgment involves findings by the trial court that appellee did not waive the violation by appellant of the stipulation set out in the statement above in either of the ways charged against it. We agree that the finding that appellant was not entitled to predicate waiver he asserted on the "proof of loss" he made was correct, for it was not shown that such proof was made in compliance with a demand therefor by appellee (14 R. C. L. 1197; Woodard v. Ins. Co., 128 Wis. 1, 106 N. W. 681, 116 Am. St. Rep. 17; Ridgeway v. Modern Woodmen, 98 Kan. 240, 157 Pac. 1191, L. R. A. 1917A, 1062); but it appeared that appellee knew appellant had violated the stipulation at the time it paid the bank the part of the loss it was entitled to claim by the terms of the policy, and we think it therefore must be said, in view of the authorities, that such payment operated as a waiver by appellee of its right to complain of such violation. 14 R. C. L. 1199; 32 C. J. 1355; 26 C. J. 333; 3 Cooley's Briefs on Insurance, 2744; Ins. Co. v. Polemanakos (Tex. Com. App.) 207 S. W. 922; Ins. Co. v. Lehman, 132 Ala. 640, 32 So. 733; Ins. Co. v. McAdoo (Tenn. Ch. App.) 57 S. W. 409.

Appellee's insistence that such a result did not follow, based on the provision in the Act February 19, 1919 (Gen. Laws, p. 20; article 4875a, Vernon's Statutes Supp. 1922), that, "the interest of a mortgagee or trustee under any fire...