Eureka SEC. Fire Marine Ins. v. De Ross , 40 S.W.2d 924 ( 1931 )

On Motion for Rehearing. It was provided in the insurance contract involved that said policy "shall be void * * * if the interest of the insured in the property be other than unconditional and sole ownership," and appellant set up and proved said condition as a defense to appellee's recovery.

The record shows, and it is conceded by appellee, that the insured, Mrs. De Ross, had only an inherited interest in an undivided one-fourteenth of the insured property, which obviously is far short of the "unconditional and sole ownership" required in the contract as a condition to her right to enforce its provisions.

The condition is reasonable, material, valid, and enforceable. It is a contractual warranty which the law enforces. Crescent Ins. Co. v. Camp,64 Tex. 521; Id., 71 Tex. 503, 9 S.W. 473; Nat. Fire Ins. Co. v. Carter (Tex.Com.App.) 257 S.W. 531; Fireman's Fund Ins. Co. v. Wilson (Tex.Com.App.) 284 S.W. 920; Niagara Fire Ins. Co. v. Pool (Tex.Civ.App.)31 S.W.2d 850, 852. As was said by our Supreme Court in the case first cited: "Whether the interest of the survivor is legal or equitable, or whether he is or not a trustee, can make no difference, since it seems indisputable that he is not the sole and unconditional owner, for his own use and benefit, upon any authority, or tested by any theory of law. The risk increases as the interest of the assured is lessened, and the condition that the actual interest, if less than that perfect proprietorship described in the policy, shall be stated in the policy, is sustained by greater reason than supports many material warranties in such contracts. But whether reasonable or not can make no difference. The parties have made the agreement and put it in language unambiguous and emphatic; it is neither immoral nor against public policy, and we have been able to discover no law to prevent the consummation of the lawful intent of the parties, plainly expressed."

It is true that an insurer may waive such condition and thereby cut itself off from asserting it as a defense, but no such waiver was pleaded in this case, or submitted to the jury, and therefore appellee did not show herself entitled to recover.

Of course it is true, as appellee contends in her brief, that Mrs. Margaret De Ross had an insurable interest in the property, but that is beside the question presented in the appeal. That question is one of sole ownership only.

Other questions are raised in the appeal, but the one decided above is controlling, while the others, not likely to arise upon another trial, need not be decided or even discussed.

Because appellee did not meet the condition of sole ownership, or plead and establish by jury findings a waiver thereof upon the part of appellant, the judgment must be reversed and the cause remanded.