East Texas Fire Insurance v. Dyches , 56 Tex. 565 ( 1881 )

Gould, Associate Justice.

Dyches, for the use of McDannell & Co., brought suit in Travis district court December 29, 1819, against East Texas Fire Insurance Company for insurance on building, bar-room fixtures and liquors in Llano, Texas, destroyed by fire August 9, 1819.

The petition does not make an exhibit of the policy, nor does it undertake to set forth all of the numerous terms and conditions which are made part of the contract, but which are in the nature of conditions subsequent. Enough of the contract was stated, in connection with facts showing performance or excuse for non-performance of all conditions precedent, to show, prima facie, a complete right of action. Those parts or conditions of the contract which are matters in the nature of conditions subsequent, or in the nature of exceptions, or which are prohibitory of certain acts by the assured, are matters of defense, and were not required to be noticed or negatived in the.petition. Although there are some authorities which require that the entire contract, including the application, be set out in the petition, the great weight of authority is in accordance with a rule which we think more consistent with principle, and better calculated to avoid inconvenient and unnecessary prolixity in the pleadings. May on Insurance, § 586; Wood on Fire Insurance, p. 825, and authorities cited by those authors.

This policy contained a provision requiring the assured to give notice of the loss forthwith, and “as soon as possible” “render a particular account of such loss, signed and s worn, ” specifying with much minuteness what proofs of loss were to be made and furnished. This was undoubtedly a condition precedent to the liability of the company. The petition so treats it and contains the following:

“That immediately after the destruction of said property by fire as aforesaid, plaintiff gave defendant due notice of his said loss, and thereafter, to wit, on or about the first day of September, A. D. 1879, the defendant sent its agent, one L. A. Pires, by it duly authorized and empowered to take proofs of said fire and loss, and to adjust and settle the same, to the said town of Llano, and the said agent, in behalf of defendant, did then and there view the scene of said fire, and did then and there take such affidavits and proofs of said loss as 'were required by defendant under said policy, and did ivaive further proof thereof by plaintiff, and did then and there promise plaintiff that his said loss should be adjusted and paid without further delay; and plaintiff says that due notice and proofs of said loss were received by said defendant to its entire satisfaction, at its said office, more than sixty days before the filing of his original petition in this case on December 29, 1879.” The company specially excepted to the above in so far as it alleged a waiver, because insufficient in law, the allegations with respect thereto being uncertain as to facts, and mere legal conclusions, and without the necessary averments . of place, persons and facts, to give the defendant any sufficient cognizance thereof.

If an agent authorized, as alleged, to adjust and settle the loss, did the various acts alleged, and promised plaintiff that his losses should be paid without further delay, we think the company would be estopped from disputing plaintiff’s claim on the ground of his failure to furnish proofs of loss.

In our opinion the court did not err in overruling the exceptions to the petition. It follows from these views that the court did not err in admitting the policy in evidence, although the application was not offered in connection therewith; nor did the court err in admitting evidence to establish the alleged waiver. In addition to the ground that the plea of waiver was insufficient, the evidence was objected to on the ground that the authority of the agent was not shown. There was evidence sufficient, we think, to support a finding that the agent’s authority was ample.

By the terms of the policy the application is to be considered “apart of this contract and a warranty by the assured;” “any false representation by the assured of the title, condition, situation or occupancy of the property, or any omission to make known every fact material to the risk, or any failure or omission to state any mortgage, trust deed or lien upon the property insured or any part of the same; . . . or if the interest of the assured in the property, whether as owner, trustee, consignee, mortgagee, lessee or otherwise, be not truly stated,” then the policy is to be void.

The application contains the following questions and answers by appellee:

Q. 12. “ Is the property mortgaged, and what amount ? ” Ans. “Yes.”

“Is there any insurance by mortgage ?” Ans. “No.” Q. 16. “ Is the land on which the building stands held in fee simple or lease ?” Ans. “Fee simple.”

It appears from the evidence that McDannell & Co. had sold and conveyed their place to one Robinson, retaining a lien for $2,000 of unpaid purchase money. Robinson sold to plaintiff Dyches and his other partner, House, who, in part payment, assumed to pay the $2,000 to McDannell & Co., the balance of the purchase money being paid to Robinson. The evidence is conflicting as to whether Robinson made them a title bond, or any written showing whatever; Dyches having bought out House, the insurance was taken out on the house, stock, fixtures, etc., for the benefit of McDannell & Co. After the fire Robinson conveyed the place to McDannell & Co. with the consent of Dyches, who received a credit of $100 on his indebtedness to McDannell & Co.

Appellant claimed that the policy was avoided, because the warranty that the land was held in fee simple was false. The question presented for our consideration, however, is not as to the merits of this defense, but as to whether the court erred in refusing the following charge bearing thereon:

“If the jury believe, from the evidence, that plaintiff represented and stated in his application for insurance that the land upon which the insured building stood was held in fee simple, and that it was not at the time of making said application so held in fee simple by the plaintiff, they will find for defendant. If from the evidence the jury are satisfied that the plaintiff claimed said land under a mere verbal contract of purchase, and that the purchase money had not been paid, and there was an outstanding unsatisfied vendor’s lien, and no deed had ever been made to plaintiff, they are instructed that plaintiff did not hold said land in fee simple.”

Upon this subject the court charged as follows:

“The policy contains the stipulation following: If the interest of the assured in the property be any other than the entire unconditional and sole ownership of the property for the use and benefit of the assured, it must be so represented to the company, and so expressed in the written portion of the policy, otherwise the policy shall be void. This clause in the policy should be construed in connection with the statement in the application, and what both together fairly mean is a question of construction for the court, and I charge you that if you find from the evidence that A. Dyches had purchased, or rather bargained for, the lot, and had paid all the purchase money, and had been placed in possession, then his title was perfect, and his right to the land secured, and sufficient to satisfy the stipulation, otherwise not.”

The assignment of errors goes only to the refusal of the charge asked, and on that point alone do we feel called on to pass. We are of opinion that the evidence did not require the court to give a charge based on the hypothesis that the jury were satisfied “that the purchase money had not been paid, and there was an outstanding unsatisfied vendor’s lien.” The evidence is, that, with the exception of that lien, the purchase money had been paid, and therefore the'court did not err in refusing the charge as asked.

It may be remarked that the entire equitable right in or to the land seems to have been conceded by Eobinson, who held the legal title, to be in Dyches, who took out the policy, or in McDannell & Co., for whose benefit it was taken out; and that whether Dyches was or was not in a condition to enforce specific performance, does not clearly appear. If he was in that condition, the authorities are that there was no breach of the warranty. Swift v. Vermont Nat. Fire Ins. Co., 18 Vt., 313; Hough v. City Fire Ins. Co., 29 Conn., 10; Gayloid v. Lamar Fire Ins. Co., 40 Mo., 16.

By the terms of the policy it was to be void if the premises became unoccupied without the assent of the company indorsed thereon.

There was evidence tending to establish a breach of this condition, and appellant complains that the court erred in refusing the following charge on that subject:

“ If the jury believe from the evidence that the insured building was vacant and unoccupied at the time of the fire, without notice to and consent of the defendant, this defeats the plaintiff’s right of recovery, unless the defendant waived this condition.”

Upon this point the court charged as follows:

“Defendant insists that the condition of the policy has been broken by the assured, by reason of which the policy became void, because the building was left unoccupied for a space of time inconsistent with the ordinary use of the building such as increased the risk, and that this was without notice to the company and without defendant’s consent. It is stipulated in the policy that if the premises became unoccupied without the assent of defendant indorsed on the policy, that the policy shall be void. It will be for you to say whether the house has been occupied in such manner as was reasonable and might have been reasonably anticipated "by the parties to the policy, and if so, then this defense will not avail the defendant; but if you find that the same became unoccupied for an unreasonable time under the circumstances, then the defense upon this point will defeat the plaintiff. This clause in the' policy has a meaning, but the jury must determine whether, considering the character of the house and the business carried on within it, there has been a breach of the contract in this regard as to render the policy void, and the court cannot properly indicate any view that it may take of the case.”

In our opinion the charge asked was substantially embraced in the chai’ge given, and therefore the refusal to give that charge in the precise form asked was not error.

[Opinion delivered May 27, 1881.]

It is insisted that the evidence failed to establish the alleged waiver of proofs of loss, and that for this reason the verdict was wrong and the motion for a new trial was wrong.

The evidence on this point was in direct conflict, and was sufficient, if the jury believed the statements of Dyches, to support the verdict.

The judgment is affirmed.

a.—

Associate Justice Bonner did not sit in this case.

Note.— The record in the above case was not accessible when LV Texas, in which it should have appeared, was being reported.