279 S.W. 287 | Tex. App. | 1925
The stipulation being a valid one (Ins. Co. v. Carter [Tex.Com.App.]
The debatable question, it seems to us, is one as to whether the insurance company, when it issued the policy sued upon, was chargeable with the knowledge as to the ownership of the property it obtained through its agent at the time the first one of the policies was issued. The insurance company insists that the fact, if it was a fact, that its agents knew that Whatley was not the sole owner of the property when, acting for it, they issued the policy in 1919, did not warrant a finding that it was chargeable with such knowledge when, acting by the same agents, it issued the renewal policies in 1920, 1921, 1922, and 1923. In support of its contention, the insurance company cites Kauffman v. Robey,
Applying the rule (and remembering the reason for it) to what the jury had a right to say were the facts of this case, there is no doubt the insurance company was chargeable with knowledge of the ownership of the property it insured when it issued the first policy in 1919. If the jury might have found that the insurance company had such knowledge, then we think they had a right to conclude from the circumstances of the case that it (the insurance company) had no reason to believe that Whatley's relationship to the property had changed when it issued the renewal policies, and a right to infer therefrom that it had such knowledge in mind when it issued said renewal policies, including the one sued upon. Ins. Co. v. Cummings (Tex.Civ.App.)
Another contention presented by said propositions is that the judgment should be reversed because of improper argument by *289 one of Whatley's attorneys to the jury. The language of the attorney complained of was as follows: "Doubtless Will Niblock insured other buildings in Tyler during the last five years in the same condition as to title." It appears from the bill of exceptions that, when the attorney of the insurance company objected to the argument, the attorney who made it said he was "willing for it to be withdrawn," and that the court thereupon said: "All right then, proceed with the argument." If the argument was improper, and we think it was, because not warranted by the testimony, we think it should be assumed that the jury understood from what was said by the court that it was not to be considered by them, and that they did not consider it. In that view the unwarranted argument did not operate to the prejudice of rights of the insurance company, and therefore it ought not to be regarded as a sufficient reason why the judgment should be set aside.
The judgment is affirmed.