Franklin Fire Ins. Co. v. Britt ( 1923 )

The facts conclusively show that T. B. Britt was the sole owner of the automobile, and that J. T. Britt was only acting as the agent of T. B. Britt in making the contract of insurance. The evidence is conflicting as to whether or not the insurance company, acting through its soliciting agent, had knowledge of the agency at the time of making the contract of insurance. Can T. B. Britt sue upon the policy and prove by parol evidence that the indemnity was made for his benefit? Under the law of agency, where an agent, in making a contract, acts in his own name, and does not disclose the name of his principal or the existence of an agency, in such case the agent becomes, as to the third person, the real contracting party, and therefore has a right of action on the contract, although the principal may also sue thereon in his own name. Tinsley v. Dowell, 87 Tex. 23, 26 S.W. 946; Texas Overall Co. v. Mummert (Tex.Civ.App.) 157 S.W. 219; Allison v. Phoenix Assurance Co., 87 Tex. 593,30 S.W. 547; Hunter v. Adoue and Lobit, 38 Tex. Civ. App. 542, 86 S.W. 622; Life Assurance Society v. Farquhar et ux., 75 Wash. 667, 135 P. 619. As stated in Kempner v. Dillard, 100 Tex. 505, 101 S.W. 437,123 Am. St. Rep. 822.

"We are unable to see anything in this case to take it out of the ordinary rule that the contract of an agent, who deals in his own name without disclosing that of his principal, is the contract of the principal. The party contracted with may sue the principal for the enforcement of the contract, when he learns that the agent was acting for another, and so the principal may sue the third party to enforce his rights under the contract, subject to any equities of such party as against the agent. Where the agent buys property in his own name, his principal being undisclosed, it immediately becomes the property of the principal, and not that of the agent."

It is concluded that T. B. Britt could sue upon and enforce the contract in his favor upon proof that J. T. Britt was acting as his agent. J. T. Britt admits that he was not the owner and had no interest in the insured automobile, and was acting merely as agent of T. B. Britt. While appellant did not offer, as it could have done, to make J. T. Britt a party defendant, yet J. T. Britt would nevertheless be estopped in this record from recovering on the policy. The assignments are overruled.

It is believed that in view of article 5714 of the statutes, and the decisions thereunder, the appellee would not be denied a recovery herein merely because the written proofs of loss were made on October 27, being 98 days after the date of the theft of the automobile. There is involved in the court's judgment the finding that the proofs were made in writing within a reasonable time. It appears that appellant had actual notice of the loss at the time the theft occurred, and, acting on such actual notice given by the appellee, proceeded to make investigation and effort at recovery of the automobile. This investigation continued for 60 days, and the appellee was told by the adjuster to wait that length of time to see if the stolen car could be recovered before proceeding to any adjustment under the terms of the policy. The propositions are overruled.

The evidence does not warrant the conclusion that such fraud or misrepresentation was practiced upon the appellant in regard to the value of the automobile as would operate to deny any recovery on the claim in suit. The agent testified that at the time he took the application for the insurance he "saw" and "inspected" the automobile and "judged it was in good condition." The agent further testified, "I considered it a good risk for $600 at that time."

There being no reversible error, the judgment is affirmed.