70 Tex. 12 | Tex. | 1888
On the fifth of October, 1883, G. W. Scott obtained a policy of insurance on a house in Lampasas for one year, from P. M. Hargrave, who was the local
It is contended by appellant that the garnishment was prematurely filed, because at the time of its issuance no proof of loss had been made, and by the terms of the policy proof of loss was required before the company could be held liable to pay. It has been frequently held that making proof of loss, where there is such a stipulation in the policy as is in this, is a condi- ' tion precedent, and must be complied with before suit can be maintained for the recovery of the amount of the policy. (East Texas Insurance Company v. Dyches, 56 Texas; O’Brien v. The Insurance Company, 63 New York; Insurance Company v. Nelson, 65 Illinois.)
But we are of opinion that the issuance of a writ of garnishment is not strictly speaking an action for the recovery of a debt, but is more in the nature of a bill of discovery, and may
hi or do we think it necessary that the controverting affidavit ,to appellant’s answer should contain all the allegations necessary to authorize a recovery on the policy in an ordinary suit ¡at law. Article 211 of the Revised Statutes provides that the : plaintiff may contest the answer of the garnishee, if he believes ■it incorrect, by affidavit in writing, stating in what particulars .he believes the same untrue; while article 213 provides that in , such cases an issue shall be formed, under the direction of the court, and tried as in other cases, giving the court plenary power in reference to the formation of the issue, so far as mere 1 form is concerned. “All that can be required of the plaintiff is that he state the facts on which he relies to establish the liability of the garnishee with sufficient certainty to enable the latter to prepare for his defense.” (Adkins v. Watson, 12 Texas, 199, 200.) In this case the complaint is not that the plaintiffs in their pleadings failed to state such facts as were necessary to enable the garnishee to make its defense, but that the pleadings were not sworn to. We think it sufficient that the controverting affidavit was under oath; there is no law requiring that the allegations upon which the issue is made up should be sworn to.
The principal question in the case yet remains: Was appel1 lant liable on its policy to the creditors of Scott. The company was induced to give its consent to the transfer of the policy upon the false representation that Hargrave had become the owner of the property insured, while the proof shoived that the „understanding was that the transfer from Scott to Hargrave should be a mere cover to enable Scott to effect a favorable ..compromise with his creditors, he being at the time largely F-indebted; and, no consideration having passed, the transfer l was fraudulent and void as to his creditors.
It is provided in the policy “that all fraud or attempt at ^raud, by false swearing or otherwise, shall be a complete bar
But it is objected that, conceding the fraud would ordinarily avoid the obligation of the policy, yet Hargrave being the agent of the company, and having knowledge of the fraud by reason of his own participation therein, the appellant is chargeable with his knowledge, and for that reason must be held to have waived its right to insist on the condition of the policy before referred to, though it was in fact ignorant of the fraudulent intent of Scott and Hargrave.
It is well settled that the knowledge of the agent will be imputed to the principal in matters where the agent is acting in the scope of his authority, and that the principal can not avail himself of the fruits of his agent’s fraud on account of his ignorance of such fraudulent conduct. (Kerr on Fraud and Mistake, 111, 112; May on Insurance, 142; Wright v. Calhoun, 19 Texas, 421.)
But Hargrave, in procuring the transfer of the policy from Scott to himself, was not representing the company, nor was the act for its benefit, it being a matter of indifference to the company to whom the policy was payable; the transfer being at the request and. for the accommodation of Scott, no valid reason is perceived why appellant should be estopped from insisting on the conditions of its policy. And in order to do so it was not necessary to return or offer to return any portion of the premium after discovering the fraud. (Besser v. Insurance Company, 37 Wisconsin, 39, 40; Phenix Insurance Company v. Stevenson, 78 Kentucky, 161.)
There is another view of the case, also, fatal to appellee’s right to recover. As a general rule, the plaintiff can not acquire any greater rights against the garnishee than the defendant himself possesses, unless the garnishee be in possession of effects of the defendant under a fraudulent transfer. (Drake
In view of the foregoing, we are of opinion that the judgment should be reversed and here rendered for appellant.
. jReversed and rendered.
[Judge Acker did not sit in this case.]