Westchester Fire Ins. Co. v. Roan

• Decision Date: 28 June 1919
• Docket Number: (No. 9142.)
• Citation: 215 S.W. 985
• Parties: WESTCHESTER FIRE INS. CO. v. ROAN.
• Court: Texas Court of Appeals

215 S.W. 985

WESTCHESTER FIRE INS. CO. v. ROAN.

(No. 9142.)

Court of Civil Appeals of Texas. Ft. Worth.

June 28, 1919.

Rehearing Denied October 18, 1919.

Error from District Court, Eastland County; Joe Burkett, Judge.

Suit by E. D. Roan against the Westchester Fire Insurance Company. To review judgment for plaintiff, defendant brings error. Reformed and affirmed.

Thompson, Knight, Baker & Harris and Will C. Thompson, all of Dallas, for plaintiff in error.

J. R. Stubblefield, of Eastland, for defendant in error.

CONNER, C. J.

The appellee, E. D. Roan, instituted this suit in the district court of Eastland county to recover upon a fire insurance policy delivered to him by appellant company on January 13, 1916, whereby it insured him against loss by fire from January 13, 1916, to January 13, 1917, in consideration of a $57 premium paid. The aggregate amount of insurance was $1,200, thus placed: $300 on a one-story iron-clad building, occupied as a cotton gin; $550 on fixed and movable machinery of all kinds, incident and necessary to the handling and ginning of cotton; $250 on engine and boiler, including foundations, settings, etc.; $100 on a one-story frame seed house with metal roof. A fire occurred on the night of November 26, 1916, and all of the property above specified except the seed house, was destroyed, at which time the property was worth more than double the amount of the insurance. The plaintiff's prayer was for $1,100, with interest.

The defendant answered by general denial, and specially pleaded a provision of the policy, whereby the assured warranted, upon penalty of forfeiture, that the property described in the policy should be in active operation during the ginning season.

The plaintiff replied in a supplemental petition, to the effect that by reason of the existence of the boll weevil sufficient cotton was not grown in the vicinity of the gin to warrant its operation during the ginning seasons of 1915 and 1916; that this condition was known to the agent of the defendant who received the plaintiff's application for the insurance, and that by reason of such knowledge and by reason of the fact that the defendant permitted the policy to continue in force, it had waived the warranty clause mentioned.

A trial upon the issues indicated resulted in a verdict and judgment in plaintiff's favor for $1,100, and the defendant has duly appealed.

Error is first assigned to the refusal of the court to give a requested peremptory instruction to find in the defendant's favor. The undisputed proof, shows that the soliciting agent of the defendant company, who received the plaintiff's application for the insurance, was informed, after interrogation, that the plaintiff had not ginned any cotton during the ginning season of 1915; that this agent resided in the city of Cisco, a number of miles distant from plaintiff's gin; that both the application and the policy contained the warranty pleaded by the defendant company; that in the trade territory of the plaintiff very little cotton was raised during the year 1916, not more than 20 or 30 bales, and that for such a quantity plaintiff could not run his gin profitably; and that, therefore, he did not operate it during that year.

We concur with appellant's contention that the warranty clause of the policy was not waived by the existence of the circumstances stated. The failure of the cotton crop in the vicinity of appellee's gin was not total, so that it cannot be said that there was no ginning season whatever during the year 1916. And the mere fact that plaintiff could not operate his gin, as he had warranted to do, without loss, will not, we think, relieve him from the operation of his covenant and warranty to operate. A like conclusion on this subject, under almost...