Ph&338nix Insurance Co. v. Ward , 7 Tex. Civ. App. 13 ( 1894 )

This is a suit upon an insurance policy to recover for the value of certain household goods destroyed by fire. By the terms of the policy sued on it was provided, that if the assured was not the sole, unconditional owner, and if his title was not complete to the property, or if the same was incumbered by mortgage, the policy was to be void. The defendant pleaded that it was not liable, because the policy was obtained by the plaintiff upon the representation, at the time it was issued, to the effect that plaintiff was the unconditional and sole owner of the property insured, and that the same was not incumbered by mortgage, when in fact the plaintiff was not the owner of the piano, a part of the property insured, for that it was then mortgaged to Thomas Goggan Bro., of Galveston. The court rendered judgment in favor of the plaintiff for the amount of the policy, less the value of the piano.

The liability of defendant upon its contract of insurance was established if the defense set up was not sustained, or if the contract of insurance was divisible.

Upon its face the policy insured the property in the aggregate for the sum of $1450. No separate value is given to any of the items of the property insured; the property insured is described as "household furniture, useful and ornamental, kitchen furniture and utensils, etc., piano, organ, sewing machine, family supplies and fuel." The policy is entire in form and recites payment of an entire premium.

There is credited on the policy $25 for a previous loss which had been adjusted and settled at that sum.

There was a chattel mortgage upon the piano for $550 in favor of Thos. Goggan Bro., of Galveston, at the time the policy was issued, and at the time of the fire.

Prior to the issuance of the policy sued on, the plaintiff had separate policies of the defendant on the piano and the other property issued upon written applications; the one on the piano for $600, and that on the other property for $850. When these policies expired S.R. Keen, who was the clerk of V. Wiess, the agent who issued them, inquired of plaintiff if he wished to renew the same; plaintiff then declined to do so, but after two or three days, on reflection, told Keen to renew the insurance, and the policy sued on was issued. When it was presented to the plaintiff by Keen, plaintiff asked him if he ought not to put the piano in a separate policy from the furniture, and make it payable to Thos. Goggan Bro., as their interest might appear. He replied that it made no difference. Plaintiff told Keen before he took the policy that the piano was mortgaged, and accepted his statement that the policy was all right, and paid the premium. The policy was issued on verbal application, as above stated.

V. Wiess was the agent of defendant at Beaumont and in Jefferson County. Keen was his clerk, and had been for more than three years, and did all the detail work of soliciting insurance, filling out policies, collecting premiums, and the like, Wiess doing nothing more than to sign the policies officially. In all other respects than to sign the policies Keen had the management of the business. Wiess had no knowledge of the mortgage on the piano, and never heard of it until after the fire.

The court below, trying the case without a jury, found that Keen was not the agent of defendant, and that notice to him would not bind the defendant; but held, that the policy was a divisible contract for insurance, and rendered judgment as above stated in favor of the plaintiff for the sum of $825, with interest, being the balance of policy less $600, the value of the piano. Both parties excepted to the judgment of the court and gave notice of appeal, but the defendant only has assigned errors.

The condition of the policy relied on by the defendant to defeat a recovery by the plaintiff is reasonable, and would be ordinarily valid. Ins. Co. v. Camp, 64 Tex. 524. But defendant would be estopped to set up the breach of such condition if the policy was delivered with full knowledge of the facts constituting the breach. To insist on these facts as a ground of avoidance, is to attempt a fraud. Ins. Co. v. Ende, 65 Tex. 121. While we are disposed to agree with appellant that the contract was not divisible, and that the court below erred in so holding, yet if the undisputed facts show that Keen was such an agent of the defendant as that notice to him of the fact of the mortgage would be notice thereof to the defendant, the judgment of the court below ought to be affirmed.

The court found that Keen had knowledge of the mortgage, but that he was not the agent of the defendant. The facts as above stated, however, with respect to his agency, appear from the statement of facts to be undisputed. He was shown to be the clerk of Wiess, who was the general agent of defendant for Jefferson County, with powers to solicit insurance and issue policies, for the transaction of his entire insurance business, except the signing of policies. As such clerk, notice to him was notice to the defendant. Ins. Co. v. Josey (Texas Civ. App.), 25 S.W. Rep., 685; Mech. on Agency, sec. 193; May on Ins., sec. 154; Bodine v. Ins. Co., 51 N.Y. 117; Arff v. Ins. Co., 125 N.Y. 57; Ins. Co. v. Bounds (Neb.), 53 N.W. Rep., 660; Bergeron v. Ins. Co. (N.C.), 15 S.E. Rep., 883; Ins. Co. v. Ruckman (Ill.), 20 N.E. Rep., 77.

We are asked by the appellee to reform the judgment of the court below and render judgment in his favor for the full amount of the policy. As this court has only appellate jurisdiction, and the appellee has not invoked such jurisdiction by a cross-appeal, we can only affirm the judgment.

Affirmed.