58 S.W.2d 1096 | Tex. App. | 1933
On trial before the court judgment was rendered for the plaintiff and the above is taken substantially from the findings of fact made by the trial court. That assured could waive his right to five days notice of cancellation or make oral agreement of cancellation independent of such time, we have no doubt, It is plain that the notice to Mrs. Bralley was ineffectual and that all the parties recognized that she was without *1097 authority to accept such notice — she by asking her father what to do about it, he by calling Bailey, and Bailey by his dealing with appellee instead of Mrs. Bralley. Mrs. Bralley and appellee testified that she had no authority other than to convey information to him and it is not controverted. We thus are brought to the telephone conversation and the check. The former has been found by the trial court to show that Stevenson did not agree to a cancellation before five days and did not understand that Bailey intended any sooner cancellation. There is evidence to sustain it.
The check bore a notation, "Ret. prem. Hanover Pol. 525." Appellee does not attempt to say that he did not know it was such but neither does he say that he knew it was for a cancellation which would be effective sooner than the conclusion of the five-day period. There was no notation on the check to show the policy was already canceled, or would be sooner than five days, hence cases such as Kean v. S.W. Natl. Bank (Tex.Civ.App.)
Bearing in mind the want of conclusive notice on the face of the check as to its full import, this check becomes a part of all the evidence — the telephone conversation, the old age of appellee, the appearance of the witnesses while testifying, and the many other items before the court — on the issue of immediate cancellation of the policy which the trial judge has resolved against such cancellation. There is no wiser rule in our procedure than that which requires us to uphold the discretion given an upright diligent trial judge in deciding disputed issues. We overrule those assignments which claim cancellation of the insurance policy before the fire.
After the first fire the building was untenantable. This means more than vacant. An insurance company might well issue its policy with the ten-day vacancy clause on a vacant house and yet be heard to say that it had no reason to think the house would not be tenanted within the ten days. East Texas Fire Insurance Company v. Kempner,
The date of furnishing proofs of loss is of no importance in fixing the date of liability on the policy. The appellant promptly denied liability on the policy and hence waived any proofs of loss. It was not necessary for appellee to have furnished them at all, for the grounds of resistance of liability had no connection with proof of loss.
All assignments have been carefully considered and are overruled, and the judgment of the trial court is affirmed. *1103