Fidelity Union Fire Ins. Co. v. Campbells

288 S.W. 255

• Court: Court of Appeals of Texas
• Decided: October 8, 1926
• Docket: No. 229. [fn*]
• Status: Published

Opinion

PANNILD, C. J.

Appellant issued to ap-pellee a policy of insurance against loss by fire of certain personal property. Tbe contract provided that tbe insurance should remain in force only while tbe property was situated at a location designated in tbe contract, and that liability under tbe contract would continue if tbe goods were moved to another location only in tbe event the removal to tbe new location was indorsed in writing on tbe instrument evidencing the contract of insurance. Tbe insured property having been destroyed by fire, suit was brought and recovery bad for tbe value of tbe goods destroyed.

Tbe one question presented is the sufficiency of the evidence to establish tbe oral notice of removal and waiver by appellant’s resident agent of tbe stipulation requiring written indorsement of the change in tbe location of the property.

The testimony relied on by appellee is almost identical in terms with tbe testimony as to similar agreements held sufficient in tbe cases of Delaware Insurance Co. v. Wallace (Tex. Civ. App.) 160 S. W. 1130, and Northern Assurance Co. v. Morrison (Tex. Civ. App.) 162 S. W. 411. In tbe present instance, appellee’s bookkeeper, Miss Ward, testified that she, acting on instructions from her employer, and before tbe property was moved, called tbe office of appellant’s agent over tbe telephone; that a man answered the telephone, and she told tbe person answering tbe phone that tbe property in question was being moved to a new location, and asked that this removal be noted on tbe policy, and tbe person answering assured her that tbe matter would be attended to.

Appellant called tbe agent and all bis employees, and each testified that Miss Ward did not talk to either of said witnesses on tbe occasion as testified to by her. Appellant concedes that Miss Ward’s testimony, if not contradicted, is sufficient to sustain tbe judgment under tbe decisions cited above, but forcibly contends that where, as here, appel-lee’s witness does not identify tbe person called as an. agent of appellant, and where all the persons representing appellant at tbe number called deny tbe transaction, that this destroys tbe presumption that the party making the agreement was an agent of appellant and destroys the effectiveness of ap-pellee’s testimony.

Tbe cases referred to all declare that the' testimony set out in substance is sufficient to sustain a finding that the party called was appellant’s agent. If so, then it is difficult to perceive bow tbe controverting testimony of appellant’s witness would do more than create an issue of fact. If uncontradicted evidence is admissible and sufficient as a matter of law to sustain tbe judgment, then it would logically follow that tbe same testimony would, if found to be true, be as effective when controverted. It is not 'believed that the introduction of contradictory testimony destroys the legal effect of appellee’s evidence where, as here, the trial judge specifically found the testimony introduced by ap-pellee to be true.

This record reflects a state of facts where the trial court could very easily have concluded that one of the appellant’s witnesses was mistaken in his belief that Miss Ward did not have the conversation with such witness. In such case the situation would be the same as one where there was no controverting evidence.

The judgment is therefore affirmed.