234 S.W. 568 | Tex. App. | 1921
The statement contained in the first policy was that the automobile had been purchased as a new car by Langley, in June, 1919, and fully paid for by him; the purchase price for same being $725. In truth the automobile was not new when purchased by Langley, and the price paid by Langley was $485, which was secured by mortgage, and of which sum nearly $100 was unpaid at the time the policies above mentioned were issued.
In the first policy there was this provision:
"The following are statements of fact known to and warranted by the assured to be true, and this policy is issued by the company relying upon the truth thereof."
The policy against embezzlement by Langley referred to this policy in a way that made this statement a part thereof. Langley disappeared within a few days after the policies referred to were issued. Appellee sought to locate him, and procured a warrant for his arrest, but he was not found. There was a judgment for appellee for $500, the amount of the policy.
Appellant seeks to excuse itself from giving such notice upon the theory that the statute requires such notice to be given to the "assured," and that Langley was the assured, and, inasmuch as by his disappearance it was rendered impossible to give Langley such notice, the appellant was excused from doing so. Langley was neither the assured nor the insured in the rider policy. It expressly names Weathered as the assured; the premium was paid by him, and the policy was issued for his protection, and not to protect Langley against the embezzlement of his own car by himself.
The contention of appellant that the terms of the policy requiring proof of the value of the car at the time of its disappearance was not complied with cannot be upheld. The evidence shows that the market value of the car at the time the policy was issued was from $650 to $750. Weathered did not know the exact date on which Langley left, but it was only a few days after the issuance of the policy. This, in the absence of any testimony indicating that the automobile had deteriorated in value within this short time, is sufficient evidence to meet the requirement that the value of the car at the time of embezzlement must be proven.
Finding no error of record, the judgment of the lower court is affirmed.
Affirmed.