German Alliance Ins. Co. v. Fort Worth Grain & Elevator Co.

Texas Commission of Appeals

German Alliance Ins. Co. v. Fort Worth Grain & Elevator Co.

274 S.W. 122, 1925 Tex. App. LEXIS 1421

CourtTexas Commission of Appeals

DecidedJune 27, 1925

DocketMotion No. 6618

StatusPublished

This text of 274 S.W. 122 (German Alliance Ins. Co. v. Fort Worth Grain & Elevator Co.) is published on Counsel Stack Legal Research, covering Texas Commission of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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German Alliance Ins. Co. v. Fort Worth Grain & Elevator Co., 274 S.W. 122, 1925 Tex. App. LEXIS 1421 (Tex. Super. Ct. 1925).

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Opinions

BISHOP, J.

The defendants in error insist that justice will probably be better sub-served by reversing the judgments of the district -court and Court of Civil Appeals and remanding the cause, than by so reforming said judgments as to deny them a recovery for the loss of the stock of goods, as was done.

After due consideration, we are inclined to agree with this contention. It is evident that on the trial of the case ⅜6 district court was of the opinion that it was not necessary for the insured to prove that at the time the adjuster assured the defendants in error that the loss would be paid he knew that all the record warranty clauses contained in the policy had not been complied with. It seems that the case was tried on the theory that the insured could prove a waiver by showing that the adjustor knew that the insurance company had a right to insist on a forfeiture at the time he made the,promise to pay the loss, regardless'of whether he knew of all the grounds on which forfeiture could be claimed. The court seems to have disregarded the fact that the insurance company might have been willing to waive one ground of forfeiture, while it ■would not have been willing to waive another and different ground. The case having been tried on this theory, we cannot say that, had the insured been required by the trial court to show that all grounds of forfeiture had been waived, this could not have been done.

Being of the opinion that justice may probably be better' subserved thereby, we recommend that the judgment heretofore rendered, reforming and affirming the judgments, be set aside, and that the judgments of the Courl! of Civil Appeals and district court be reversed, and the cause remanded to the district court.

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BISHOP, J.

The defendants in error insist that justice will probably be better sub-served by reversing the judgments of the district -court and Court of Civil Appeals and remanding the cause, than by so reforming said judgments as to deny them a recovery for the loss of the stock of goods, as was done.

After due consideration, we are inclined to agree with this contention. It is evident that on the trial of the case ⅜6 district court was of the opinion that it was not necessary for the insured to prove that at the time the adjuster assured the defendants in error that the loss would be paid he knew that all the record warranty clauses contained in the policy had not been complied with. It seems that the case was tried on the theory that the insured could prove a waiver by showing that the adjustor knew that the insurance company had a right to insist on a forfeiture at the time he made the,promise to pay the loss, regardless'of whether he knew of all the grounds on which forfeiture could be claimed. The court seems to have disregarded the fact that the insurance company might have been willing to waive one ground of forfeiture, while it ■would not have been willing to waive another and different ground. The case having been tried on this theory, we cannot say that, had the insured been required by the trial court to show that all grounds of forfeiture had been waived, this could not have been done.

Being of the opinion that justice may probably be better' subserved thereby, we recommend that the judgment heretofore rendered, reforming and affirming the judgments, be set aside, and that the judgments of the Courl! of Civil Appeals and district court be reversed, and the cause remanded to the district court.

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274 S.W. 122, 1925 Tex. App. LEXIS 1421, Counsel Stack Legal Research, https://law.counselstack.com/opinion/german-alliance-ins-co-v-fort-worth-grain-elevator-co-texcommnapp-1925.