Pennsylvania Fire Insurance v. Faires, 35 S.W. 55

35 S.W. 55 | Tex. App. | 1896

This suit was instituted by appellee to recover five hundred dollars from appellant, alleged to be due by virtue of a policy which insured certain household and kitchen furniture, wearing apparel and bric a brac.

Appellant set up a forfeiture on the grounds that the property, after being insured, was mortgaged without its consent; that appellee, in making proof of loss, had concealed the fact of the mortgage; that the property insured was not owned by appellee; that sixty days after the fire had elapsed before proof of loss was made, and that appellee, in violation of a condition of the policy, and without the consent of the insurer, had kept and used gasoline in the house in which the insured property was located. The case was tried by a jury, and resulted in a verdict for appellee for five hundred dollars.

There was no error in overruling the third exception to the amended petition, which was to the effect that the petition did not show that the cause of action had accrued at the time of the filing of the suit. It is alleged that the fire that destroyed the property occurred on September 8, 1892, and that thereby the defendant became indebted to plaintiff in the amount of the insurance. The suit was filed December 14, 1892, more than three months after the destruction of the property. The petition does not show when the proof of loss was made, and there is nothing in its allegations that indicate that suit was brought before the expiration of sixty days from the time the proof of loss was made.

If there was any vitality in the objection to the proof made by J.W. Smith of the contents of the instrument containing the second proofs of loss, it was destroyed by the evidence of Landeau, a witness for appellant, who testified, without objection, to the same facts.

Appellant offered to prove by J.C. Taylor, T.A. Williamson and R.F. Williams that appellee, who was a witness in her own behalf, was a disreputable character, and at the time of the fire and for a long time prior thereto, was keeping an assignation house, which evidence was excluded by the court. In this action there was no error. While the right to ask a witness questions which are merely collateral to the issue, that may degrade him, has been extended very considerably in criminal cases (Carroll v. State [Tex.Crim. App.] 24 S.W. Rep., 100), yet we have seen no case where the inquiry was allowed to go beyond questions asked the witness himself on cross-examination. To permit proof such as that desired by appellant, would inject issues into the trial of causes that would result in much consumption of time and lead to no good results. We believe the rules for impeachment of witnesses enunciated in the admirable opinion of Judge Bell, in Boon v. Wethered, 23 Tex. 675, are the correct and proper ones.

It has been held in this State that, where power has been given to an agent by an insurance company to waive a condition in the policy, but prescribing that it can only be done by writing in the body of the policy a verbal waiver on the part of the agent would bind the company. Morrison v. Insurance Co., 69 Tex. 353. While this decision is opposed to the weight of authority, and is deemed by the writer to be unsound, and the prolific parent of fraud and perjury, still this court does not feel disposed to overrule it, and we must, therefore, hold that evidence of verbal permission to mortgage the insured property upon the part of the agent of appellant was properly permitted. The evidence, however, should have been confined to the acts and declarations of the agent, and it was error to admit declarations of a young man who was found in the insurance office by Tom Rice, a witness. The testimony in question must be presumed to have had influence upon the verdict of the jury, for the reason that appellee's right to recover depended on proof of permission to execute the mortgage, and this was the only evidence offered to show that the agent knew of the existence of the mortgage to Rice. The witness stated that the young man told him that there was nothing wrong in Mrs. Faires giving the mortgage, which the witness held in his hand at the time. It was not shown who the young man was.

The evidence shows that two mortgages were given on the insured property, the first to Tom Rice and the second to Nigro. There was no evidence that tended to show that the agent of the insurance company knew that appellee had given the mortgage to Rice, all the testimony except the declarations just spoken of, being directed to showing permission to execute the mortgage to Nigro. It was therefore clearly erroneous to instruct the jury that, if the insurance company had knowledge of and consented to the first mortgage, and the second mortgage was given to raise money to release the property from the first mortgage, appellant was charged with notice of the second mortgage. One of the provisions of the policy was, that certain named explosive substances and inflammable fluids, among the number being gasoline, were "positively prohibited from being deposited, stored, kept or used in any building on which, or on the contents of which, there is any insurance under this policy, unless by special consent expressed in the body of the policy naming each article specifically — otherwise the insurance by this policy shall be void." Appellee testified that she had a gasoline stove in the house in which the insured property was kept, and that she used gasoline. There was no evidence of permission being given to use the gasoline. The fact that the vessel in which the gasoline was kept was stored in a barn, did not relieve appellee of a forfeiture brought about by the use of gasoline in the residence. It was permissible for the insurer to prescribe the terms and conditions upon which it would assume the risk, and if the conditions were not illegal, they were binding upon the insured, and any infraction of one of them by him would release the insurer from liability, whether such violation caused the loss or not. 1 Wood, Ins., sec. 58; Garretson v. Insurance Co. (Iowa), 45 N.W. Rep., 1047; 1 May, Ins., sec. 232; 2 Beach, Ins., sec. 745. Appellant asked a charge submitting the issue of an infraction of the condition in the policy as to the use of gasoline in the house in which the insured property was located at the time of its destruction, but it was refused, and the issue was not submitted. This was error.

The judgment is reversed and the cause remanded.

Reversed and remanded.