Springfield Fire & Marine Ins. v. Whatley ( 1925 )

^* Writ of error dismissed for want of Jurisdiction March 3, 1926. The first of the contentions presented by the propositions in the insurance company's brief, to wit, that the trial court should have instructed the jury to return a verdict in its favor, is predicted upon testimony showing conclusively that the stipulation in the policy as to the ownership of the property, set out in the statement above, was violated. We agree that it appeared without dispute in the testimony that Whatley was not the sole and unconditional owner of the property, and further that an agreement waiving the stipulation referred to was never "indorsed on or added to" the policy.

The stipulation being a valid one (Ins. Co. v. Carter [Tex.Com.App.]257 S.W. 531) it follows that the contention specified should be sustained, unless there was testimony warranting a finding that the insurance company waived it (the stipulation) in some other way. If there was such testimony, it was that referred to in the statement above showing that the agent of the insurance company was informed as to the ownership of the property February 22, 1919, when he, acting for the company, for the first time issued a policy insuring the house and goods. We think there is no doubt, had the property been destroyed during the life of that policy, and had the suit been on that policy, the insurance company should not have been heard to deny liability because of the violation of the stipulation in question. Ins. Co. v. Carter (Tex.Com.App.) 257 S.W. 531; Ins. Co. v. Ende, 65 Tex. 123; Wagner v. Ins. Co., 92 Tex. 549, 50 S.W. 569; Ins. Co. v. Cummings, 98 Tex. 115,81 S.W. 705.

The debatable question, it seems to us, is one as to whether the insurance company, when it issued the policy sued upon, was chargeable with the knowledge as to the ownership of the property it obtained through its agent at the time the first one of the policies was issued. The insurance company insists that the fact, if it was a fact, that its agents knew that Whatley was not the sole owner of the property when, acting for it, they issued the policy in 1919, did not warrant a finding that it was chargeable with such knowledge when, acting by the same agents, it issued the renewal policies in 1920, 1921, 1922, and 1923. In support of its contention, the insurance company cites Kauffman v. Robey, 60 Tex. 308, 48 Am.Rep. 264; Ins. Co. v. May (Tex.Civ.App.)35 S.W. 829; Ins. Co. v. May (Tex.Civ.App.) 43 S.W. 73; Ins. Co. v. Compress Co., 50 Tex. Civ. App. 172, 109 S.W. 1134; Ins. Co. v. Wright,58 Tex. Civ. App. 237, 125 S.W. 363; and Ins. Co. v. Carter (Tex.Com.App.) 257 S.W. 531. We have examined each of those cases, and do not think either one of them, when its facts are considered, furnishes any support for the contention. In the case first mentioned (Kauffman v. Robey), the court stated as a reason for the rule which charges a principal with notice of "all such facts as come to his agent's knowledge, while acting within the scope of his agency," "that, when the agent is under obligation to communicate his knowledge to his employer, the latter is bound, because, if the agent has done his duty he has imparted the information, and, if he has not, the party who trusted him is the one to suffer for his neglect."

Applying the rule (and remembering the reason for it) to what the jury had a right to say were the facts of this case, there is no doubt the insurance company was chargeable with knowledge of the ownership of the property it insured when it issued the first policy in 1919. If the jury might have found that the insurance company had such knowledge, then we think they had a right to conclude from the circumstances of the case that it (the insurance company) had no reason to believe that Whatley's relationship to the property had changed when it issued the renewal policies, and a right to infer therefrom that it had such knowledge in mind when it issued said renewal policies, including the one sued upon. Ins. Co. v. Cummings (Tex.Civ.App.) 95 S.W. 48.

Another contention presented by said propositions is that the judgment should be reversed because of improper argument by one of Whatley's attorneys to the jury. The language of the attorney complained of was as follows: "Doubtless Will Niblock insured other buildings in Tyler during the last five years in the same condition as to title." It appears from the bill of exceptions that, when the attorney of the insurance company objected to the argument, the attorney who made it said he was "willing for it to be withdrawn," and that the court thereupon said: "All right then, proceed with the argument." If the argument was improper, and we think it was, because not warranted by the testimony, we think it should be assumed that the jury understood from what was said by the court that it was not to be considered by them, and that they did not consider it. In that view the unwarranted argument did not operate to the prejudice of rights of the insurance company, and therefore it ought not to be regarded as a sufficient reason why the judgment should be set aside.

The judgment is affirmed.