22 S.W.2d 978 | Tex. App. | 1929
Appellee Charles A. Landamore declared on a fire insurance policy for $1,000, issued on a house in Stockdale by Security National Fire Insurance Company, on October 8, 1926, and expiring on October 8, 1927; the house insured having been destroyed by fire on September 30, 1927. Landamore declared in the alternative on a policy for $1,000 issued by appellant, Gulf Insurance Company, and on a trial by the court judgment was rendered in favor of Security National Fire Insurance Company and against Landamore, and in favor of the latter, as to appellant, for $1,000.
The facts show that a policy for $1,000 was issued to Landamore on October 8, 1926, on his house in the town of Stockdale, by Security National Fire Insurance Company, good for one year or until October 8, 1927. The policy was in full force and effect on September 30, 1927, when the house was consumed by fire. An attempted cancellation of the policy was made by A. C. Bain, the agent of both of the insurance companies, and notice of his attempted cancellation of the first policy and the substitution of a policy in the appellant company was unauthorized by Landamore and done without his knowledge or consent. The policy given by Security National Fire Insurance Company provided that the policy could be canceled by the insurance company, by giving five days notice of such cancellation to the insured. No notice of any kind was given to Landamore until two days after the house had been destroyed by fire. On September 27, 1927, without being authorized by the insured, Bain issued a policy in the Gulf Insurance Company, and in the face of the last-named company's instructions not to insure any property on which any policy had been canceled. The last-named policy was not delivered to appellee Landamore until after the fire.
The facts should be considered and a decision reached without reference to the second policy. The Security National Fire Insurance Company had issued a policy to Landamore, and it was in his possession without cancellation when the fire occurred. The fire occurred three days after the attempted cancellation, and as said by Bain: "Mr. Landamore could not possibly have been given the five days' notice as the fire occurred too soon." Under the very terms of the policy itself it was still in existence at the time of the fire.
We cannot entertain the proposition that Bain was the agent of the insured. To so hold would be to destroy the protection of the insured and place him at the mercy of insurance companies. Bain disclaimed any authority to act for the insured except as insurance agents are usually authorized to act and do act for policyholders in the renewal of policies. It is the custom upon the part of a policyholder to rely upon the insurance agent to keep his policies alive by renewals, with no intention, by so doing, to constitute such insurance agent his agent. Landamore placed himself in the same relation towards Bain as that occupied by most policyholders towards the agents of the companies in which they are insured. He swore: "When I moved away from Stockdale I merely told Mr. Bain to keep the property insured; that was all." The niece of Landamore, who last spoke to Bain about the insurance, said: "I attended to this insurance business the last time. I happened to be in Stockdale and over in the bank and I went to see Mr. Bain. I knew the house was rented. I told Mr. Bain I knew the insurance would be up in October and for him to be sure to keep the policy up and he said he would. That was in August." If application for insurance constitutes the agent of the insurance company the agent of the insured for all purposes, policyholders are at the mercy of insurance companies. Bain stated he had no *979
authority to receive a notice for the insured and sought to notify him. In the case of East Texas Fire Insurance Co. v. Blum,
However, in the case of Dalton v. Norwich Union Fire Insurance Society, 213 S.W. 230, 231, the following language was used by the Commission of Appeals: "The five days' provision of the cancellation notice clause of the standard form policy is for the benefit of the insured, and may be waived by him through his agent who has contracted to keep him insured. An agent who is not only authorized to procure the insurance, but keep the property insured, may accept notice of cancellation, and substitute therefor other insurance, without waiting for the expiration of the five days."
The agent mentioned was the agent of the Insurer, and the language is in direct conflict with the decision of the Supreme Court hereinbefore cited. In fact, the opinion in East Texas Fire Insurance Co. v. Blum,
In the case of Grace v. American Central Ins. Co.,
The case of Clark v. Insurance Co.,
In the case of Johnson v. Insurance Co.,
The case has been fully developed, the facts found by the trial judge are clear and follow the statement of facts, and they lead irresistibly to the conclusion that the Judgment is erroneous, and that instead of judgment being rendered against appellant it should be rendered in favor of Landamore against Security National Fire Insurance Company.
It is therefore the order of this court that the judgment of the trial court be reversed, that Charles A. Landamore recover nothing from the Gulf Insurance Company and that it go hence with its costs, and that said Landamore recover of the Security National Fire Insurance Company the sum of $1,000, together with interest at 6 per cent. per annum from September 30, 1927, and all costs in this behalf expended.