68 S.W.2d 1056 | Tex. App. | 1934
This suit was instituted by defendant in error, W. E. Higgins, against plaintiff in error, the London Lancashire Insurance Company, Limited, to recover on a fire insurance policy issued to him by said company. Mrs. Gladys Hardy Matthews, joined pro forma by her husband, F. H. Matthews, intervened, asserting an interest in the insured property and asking that a proportionate part of any recovery be awarded to her by the court. The parties will be designated as in the court below.
Defendant company issued to plaintiff a policy insuring him against loss or damage by fire on certain skating rink equipment in the sum of $600. Said equipment was more particularly described in such policy as consisting of roller skates, extra wheels and straps, piano, stools, tools, and signs belonging to the assured, and all other fixtures usual in such business. The property insured was totally destroyed by fire. Plaintiff alleged that the value thereof exceeded the amount of the policy and prayed for recovery in the sum of $600 as stipulated therein.
The case was tried by the court without the aid of a jury and judgment rendered in favor of plaintiff against defendant for the sum of $600, with legal interest from the date thereof. Judgment was also rendered that intervener take nothing by her suit. No findings of fact by the court were recited in the judgment, nor were any such findings separately filed.
The finding of the court in favor of plaintiff was general. Every issuable fact must therefore be considered found in plaintiff's favor if there is any evidence to support such finding. In passing upon the sufficiency of the evidence to sustain such finding, we must view the same in the light most favorable to plaintiff's contention, disregarding all evidence to the contrary. The rule so announced applies to the consideration of the testimony of appellee in his own behalf, and any vagueness or inconsistency therein or any conflict with the testimony of other witnesses merely raised questions of fact to be determined by the trial court. Hines v. Kansas City Life Ins. Co. (Tex.Civ.App.)
The policy sued on was issued by the Maloney Insurance Agency, apparently a partnership, and their authority to issue the same is not questioned. Prior to the issuance thereof said agency had used or employed one Cox to aid them in procuring business. Mr. Maloney, the senior member of the firm, testified, in substance, that he knew that this property had been insured in another agency and that for some reason the policy had been permitted to expire; that he requested said Cox to see plaintiff and find out what he had to insure, and report back to him; and that he told Cox in that connection that he would write a policy on the property if as much as 50 per cent. of the premium were paid. Cox *1059
entered into negotiations with plaintiff for a policy on said property. Plaintiff testified that he told him in that connection in general terms his relation to the property, and also informed him that the same belonged to him and his wife. No written application for a policy was made or required. Cox reported the result of his negotiations with plaintiff back to Mr. Maloney, and he issued the policy for the defendant and delivered the same to Cox, who in turn delivered it to plaintiff and collected the premium, or a part thereof. Under the authorities above cited, the trial court must be deemed to have construed these circumstances in the light most favorable to plaintiff and to have held that notice of the actual facts affecting the title to the property insured had been given to a representative of the agency prior to the issuance of the policy. The policy sued on was issued and delivered prior to the effective date of chapter 96, General Laws 42d Legislature, Regular Session (Vernon's Ann.Civ.St. art. 5062a). The testimony above quoted shows affirmatively that Cox, in the matter of soliciting and negotiating this contract of insurance, was acting at the special instance and request of defendant's agency and in the furtherance of its business. We may safely assert as a matter of common knowledge that a large part of the actual business of many insurance agencies was then and is now transacted by clerks and other employees. The authorities in this state hold that in agencies so conducted, the action of such clerks or employees in the usual course of the business of the agency and with the approval, express or implied, of the regularly constituted agent, is in legal effect the act of the agent himself. Phœnix Ins. Co. v. Ward,
Defendant presents assignments in which it contends that plaintiff failed to furnish proof of loss in conformity with the requirements of the policy, and that such failure was a breach of the conditions thereof and barred a recovery herein. Said policy provided that in event the property covered thereby should be injured or damaged by fire, plaintiff should make a complete inventory of the personal property affected, stating the quantity and cost of each article and the amount claimed therefor, and should, within ninety-one days after the fire, render to it a statement signed and sworn to by him, disclosing his knowledge and belief as to time and origin of the fire, his interest in the property, the interests of all others therein, if any, the cash value of each item thereof, and the amount of loss thereon. Other requirements of the policy in this connection are immaterial here. Said policy further provided that no action thereon should be sustained in any court until after full compliance by the insured with all the requirements thereof. The testimony showed that plaintiff, immediately after the fire, applied to the agency which issued said policy for instructions with reference to what he was required to do; that Mr. Maloney told him, in substance, to bring an itemized statement of all the property destroyed; that he did so and turned the same over to him; that Mr. Maloney told him that an adjuster would call in a few days to see him about his loss and that nothing else was required at that time. Said itemized statement of the property lost gave the value of each item thereof. The same was forwarded by the agency to defendant and retained by it. The items and values listed therein were identical with those listed in the formal proofs of loss subsequently filed. No objection to the *1060
sufficiency thereof was made until after the expiration of the period limited for filing proofs of loss. Shortly after such statement was furnished, an adjuster acting for defendant came and examined into the circumstances of the fire, but he did not in any way communicate with plaintiff with reference thereto. Plaintiff testified that he called at the agency and inquired about his claim repeatedly, and each time was advised that the adjuster had not come and that nothing further was required of him until about ninety days after the fire, when the suggestion was made that he consult an attorney. Some considerable time thereafter a more formal proof of loss was made by plaintiff, delivered to the agency, and by it forwarded to defendant. The same was retained by defendant and plaintiff was never advised of any objection thereto. The testimony above recited, together with other facts and circumstances in evidence in that connection, was sufficient to raise an issue of waiver of strict compliance with the provision of the policy here under consideration. Chicago Fire Marine Ins. Co. v. Herring (Tex.Civ.App.)
Defendant presents assignments in which it contends the court erred in permitting plaintiff and his wife to testify that certain articles destroyed by fire had no market value at that time and place, and that certain other articles so destroyed had a market value and the amount thereof. Defendant objected to all such testimony on the ground that neither of said witnesses was shown to be qualified to testify to such facts. Plaintiff testified, in substance, that he lived at or near the burned rink; that he purchased or participated in purchasing practically all the equipment involved; that some of it was new and some secondhand; that he at that time and thereafter investigated the market value of such equipment and that he knew what articles of such equipment had a market value at the time of the fire and the value of the same; that he also knew what articles did not have a market value, the condition of the same, and the reasonable cash value thereof. The testimony of Mrs. Higgins with reference to her knowledge of market value and reasonable actual values was substantially the same as her husband's. The original *1061
cost of practically all the equipment was stated, the length of time the same had been used, and its condition at the time of the fire, as circumstances tending to show the actual value thereof. Defendant's exceptions were preserved only in the transcript of the testimony. They were in the main general and continuous, without repetition or special application to the testimony concerning any particular article. A similar issue with reference to the qualification of a witness to testify to the value of secondhand property was considered by this court in General Motors Acceptance Corporation v. Killingsworth,
Appellee Mrs. Gladys Hardy Matthews has filed a brief herein, the major portion of which is devoted to sustaining the action of the trial court in rendering judgment against defendant. She, however, in conclusion prays for reformation of the judgment so as to require that one-half of the recovery be paid to her. Intervener did not file any assignment of error in the trial court. Neither is any assignment contained in her brief herein. We are, in the absence of an assignment, without jurisdiction to consider her complaint that the entire recovery was awarded by the trial court to the plaintiff. Clonts v. Johnson,
*1062The judgment of the trial court is affirmed.