Co-Operative Ins. Ass'n of San Angelo v. Ray ( 1911 )

(after stating the facts as above). We shall not undertake to discuss in detail the various assignments of error referred to in appellants' brief, some of which constitute repetitions of questions already presented, and some of which, as contended by appellee, do not conform to the rules. On the controlling questions in the case we announce our conclusions as follows:

1. The policy sued on embodies a contract for $800 insurance on the house and $200 on the personal property of the plaintiff situated therein. The building having been destroyed, the policy became a liquidated demand for $800, regardless of the value of the building. Article 3089, R.S.

2. The plaintiff did not warrant that $800 was two-thirds of the actual cash value of the house, but certified that $1,000 did not exceed two-thirds of the actual cash value of the entire property insured, and it was not shown that that statement was false. Besides, the statement referred to would bring the case in that respect within the purview of the act of 1903, c. 69, which was construed by this court in Scottish Union National Ins. Co. v. Wade, 127 S.W. 1186, and Mecca Fire Ins. Co. of Waco, Texas, v. Stricker, 136 S.W. 599, recently decided by this court.

3. As to the alleged warranty to keep metal under the stoves the slip of paper containing that stipulation was not a part of the contract of insurance, but was pinned on the margin, so as to bring this case within the rule announced in Goddard v. Insurance Co., 67 Tex. 71, 1 S.W. 906, 60 Am.Rep. 1, where it was held that a similar slip of paper pasted onto the policy, and containing warranty stipulations, was ineffectual for that purpose.

4. Aside from our second and third conclusions, the judgment can be sustained upon the conclusion that appellant waived any right it may have had based upon the alleged warranties. According to the plaintiff's testimony, one of the defendants, with knowledge of the failure to comply with the alleged warranties, requested the plaintiff to go with him to the county seat for the purpose of making out proofs of loss, and the plaintiff quit his work and complied with that request; and the defendant referred to prepared the proof of loss, requested the plaintiff to sign it, and stated that the claim would be paid. That testimony supports a finding of waiver. Home Ins. Co. v. Moriarity, 37 S.W. 628, writ of error denied 93 Tex. 729; German American Ins. Co. v. Evants,25 Tex. Civ. App. 300, 61 S.W. 536; Couch Gilliland v. Insurance Co., 32 Tex. Civ. App. 44, 73 S.W. 1077; British American Ins. Co. v. Francisco, 123 S.W. 1144; Queen Ins. Co. v. Forlines (Ark.) 126 S.W. 719. The agent having power to make a contract of insurance may verbally waive any condition inserted for the insurer's benefit, notwithstanding the policy provides that it can be done only in writing indorsed thereon. Morrison v. Insurance Co., 69 Tex. 353, 6 S.W. 605, 5 Am.St.Rep. 63.

There are some other minor questions presented in appellants' brief, all of which have received consideration, and our conclusion is that no error has been shown.

Judgment affirmed.