Western Fire Ins. Co. of Fort Scott, Kan. v. Word
| Decision Date | 21 January 1943 |
| Docket Number | No. 10328.,10328. |
| Parties | WESTERN FIRE INS. CO. OF FORT SCOTT, KAN., v. WORD et al. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Woodville J. Rogers, of San Antonio, Tex., for appellant.
J. L. Shook, of Dallas, Tex., and Ralph W. Yarborough and Everett L. Looney, both of Austin, Tex., for appellees.
Before SIBLEY and McCORD, Circuit Judges, and DAWKINS, District Judge.
Western Fire Insurance Company of Fort Scott, Kansas, brought suit for declaratory judgment against W. A. Word, and others, Trustees for the First Baptist Church of Kyle, Texas; and sought a declaration of non-liability on certain policies of fire insurance issued by it and covering the church properties. The Trustees answered with denials, and filed a cross action to recover the full policy coverages of $6,000.00 for destruction of the church building by fire, and $500.00 for fire loss of the furniture and fixtures of the church, and $97.00 for damages to the church parsonage. The case was tried to a jury, and after rendition of a general verdict, judgment was entered for the Trustees for the full amount of the claims plus interest. Western has appealed.
H. W. Wetzel was agent for two insurance companies: Western Fire Insurance Company of Fort Scott, Kansas, and Republic Insurance Company of Dallas, Texas. His home and place of business was at Kyle, Texas, a small town of about eight hundred people. On August 2, 1940, Wetzel, who was an officer of the First Baptist Church of Kyle, approached the church treasurer, J. J. Hart, who had authority to place the insurance of the church, and asked for permission to cancel outstanding fire insurance on the church carried by Republic Insurance Company and to issue in lieu thereof three new policies of fire insurance covering the church properties, $6,000.00 on the church, $500.00 on the furniture and fixtures, and $900.00 on the parsonage; the policies to be issued by Western Fire Insurance Company. The permission was granted by the church treasurer. On August 3, 1940, Wetzel canceled the insurance carried by Republic, and wrote binders for insurance on the properties with Western. The Western binder notices were placed in the community mail box on August 3, 1940, but the letter when received by Western bore a railway mail postmark dated August 4, 1940. Both Hart and Wetzel testified as to the facts of the transaction on August 2nd, and definitely fixed the date.
The evidence shows that the church had been making improvements on its properties; that through Wetzel, as agent, insurance for $4,500.00 on the church properties had been placed with Republic; that the church officers had proposed to increase the insurance coverage when insurance rates were lowered; that the rates were lowered; and that the increased insurance coverage was placed with Western by Wetzel because his brother-in-law was agent for that company. The church was destroyed by fire Sunday night, August 4, 1940. Western's contention that its agent, Wetzel, did not issue the binder, and that coverage was not effected until after the fire had started, is unsupported by the evidence and finally put to rest by the verdict of the jury which found the insurance with Western to be in full force and effect at the time of the fire.
In its original complaint Western made Republic Insurance Company and Mutual Deposit and Loan Companies parties defendant along with the trustees of the church. On motion Republic and Mutual were dismissed from the suit without prejudice. Thereafter, Western again sought to make Republic a party defendant, but the motion was overruled by the court. By its motion Western sought to show that Republic was a real party in interest, and asserted that since the fire Republic had entered into contract with the church whereby it agreed...
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