Gould, Associate Justice.
In examining this case we have found difficulty in ascertaining from the brief of counsel for appellant the points of law arising on his assignments of error relied on and intended to be presented. The brief contains no propositions, yet it presents in connection several assignments of error, embracing the entire charge as given and the refusal of sixteen charges asked. The court, as to those assignments of error thus grouped together in the brief, is left to infer for itself what propositions or legal questions arise thereon that are important in the determination of the case. An unnecessary multiplication of propositions is a mistake more frequently found in briefs under the new rules. But a brief is defective which fails to indicate with certainty and clearness the legal questions involved, and to which the authorities cited apply. We have, however, proceeded to dispose of the case, and if in doing so we have failed to pass upon questions which might arise under the assignments of error, it is believed that we have responded to all questions properly made in appellant’s brief.
We are of opinion that the court erred in overruling defendant’s exceptions to plaintiff’s replication to the defense that the policy was void for concealment and breach of warranty, claiming that defendant had waived that ground of defense and was estopped from setting it up. It has been decided by this court [68]*68that waiver, when thus relied on, must be specially set up; that it must amount either to an agreement or an estoppel, and that in the latter case the particular acts, representations, or conduct that have been relied and acted on should be stated with reasonable certainty. (Insurance Co. v. Lacroix, 45 Tex., 158; Banking Co. v. Stone, 49 Tex., 15.) The exceptions were special, and one of the grounds was, that the allegations were vague, uncertain, and indefinite as to time, place, and circumstances, and state only legal conclusions.
The replication—or, rather, as it should now be styled, supplemental petition—alleges that defendant, having knowledge of the facts from which a forfeiture is claimed, “ elected and declined to cancel the policy and notify plaintiff, or said Ahrenbeck Brothers, of the fact”; and the conclusion is drawnthat “defendant, by its own acts, waived the breach of conditions as set up in its answer, if such ever happened, and is now estopped thereby from urging the same in defense of this suit.” By what act or conduct defendant elected and declined to cancel the policy, or made known its election, is not stated; nor is it alleged that plaintiff was thereby, intentionally or otherwise, induced to act or to remain inactive to his prejudice, in the belief that the right to forfeit was abandoned. The replication was, we think, defective in the certainty and definiteness of its averments, and otherwise fell short of stating facts sufficient to amount to a waiver or estoppel. Our views of the requisites of a waiver or estoppel, in a case of this kind, will be further developed in considering the charge of the court.
- The court charged the jury, that “if Mohl, as agent of the company, informed Lauve, its secretary, four or five weeks before the loss occurred, that plaintiff was running cotton gins in the insured preriiises, that would be notice to the company; and the latter, to avail itself of a forfeiture on account thereof, (if under the proof the use of gins worked a forfeiture,) should have apprised the plaintiff within a reasonable time of its intention to claim a forfeiture.”
[69]*69■ The evidence disclosed that Mohl was a local agent at Houston, not at Hempstead; that on a visit to defendant’s factory at Hempstead, in June, 1872, he saw that gins were run in the factory; that in the same summer Lauve, the secretary, being in Houston, Mohl complained that he was not allowed to take risks on gins and gin-houses, and when told that the company declined all such risks, replied: “You have a risk on Ahronbeck’s cotton-seed-oil factory, and they are running gins.” The secretary replied disclaiming any knowledge of any such risk, and said that if he found a policy providing for such risks, he would cancel it. The secretary testified that the conversation occurred on the street, that it passed out of his mind, and that he did not think of it again. He says: “ If spoken to by the insured, or by any one acting for him, in relation to any fact affecting the validity of his policy, I should feel bound to act in some way on such communication; but I should not if spoken to by one having no interest in the policy.”
Under these circumstances we do not think the court justified in charging the jury, as matter of law, that the company, through the information given to its secretary, had notice. The knowledge of the secretary may be equivalent to knowledge of the company; but the question is, Did the secretary owe to the holder of the policy any such duty as required him to bear in mind information thus received, and make it a rule of law that he should be held not to forget it ? It is far from clear that the same rule should apply as in case of one claiming protection as an innocent purchaser without notice.
But, aside from this, is an insurance company, acquiring knowledge of some concealment or breach of warranty constituting a valid ground of forfeiture, in all cases bound in good faith to notify the policy-holder of the forfeiture? If the circumstances be such as to show that the policy-holder had been guilty of no fraud or intentional wrong, we are not prepared to say that the company should not in honesty notify him of the forfeiture or. cancellation, especially if, under [70]*70the terms of the policy, the party would be entitled on the cancellation to a return of the premium, or a part thereof. Even a breach of warranty might occur without any intentional wrong. The cases, however, which are cited by counsel for appellee do not go to the extent of estopping an insurance company from defending on the ground of concealment or breach of warranty because of its silence, where the case is one of fraud and the company would be under no obligation to return any part of the premium.
The case most relied on by appellee is one in which, after the issuance of the policy, the holder -had made a change in his business increasing the risk, which increase of risk without, the assent of the company made the policy void, and if made with notice to the company entitled it to cancel the policy by paying to the assured the unexpired premium pro rata. (Viele v. Germania Insurance Co., 26 Iowa, 9.) In that ease the authorized agent of the company had notice from the parties, and on examining the premises assented to the change on certain conditions. The waiver was express, and, though not indorsed on the policy, was complete and binding.
Clearly, the case, as an authority, does not go far enough to embrace the case before us and support the charge given by the court. The judge who delivered the opinion says in reference to the facts of that case: “If the agent determined that the risk was increased, his duty to his principal and good faith toward the assured, and every principle of honesty, required him to cancel the policy and advise the assured of the fact. It was bad faith of the darkest hue for the agent, upon determining that the risk was increased, so to act and speak as to induce the owner to believe that the policy continued to cover the property.
Free access — add to your briefcase to read the full text and ask questions with AI
Gould, Associate Justice.
In examining this case we have found difficulty in ascertaining from the brief of counsel for appellant the points of law arising on his assignments of error relied on and intended to be presented. The brief contains no propositions, yet it presents in connection several assignments of error, embracing the entire charge as given and the refusal of sixteen charges asked. The court, as to those assignments of error thus grouped together in the brief, is left to infer for itself what propositions or legal questions arise thereon that are important in the determination of the case. An unnecessary multiplication of propositions is a mistake more frequently found in briefs under the new rules. But a brief is defective which fails to indicate with certainty and clearness the legal questions involved, and to which the authorities cited apply. We have, however, proceeded to dispose of the case, and if in doing so we have failed to pass upon questions which might arise under the assignments of error, it is believed that we have responded to all questions properly made in appellant’s brief.
We are of opinion that the court erred in overruling defendant’s exceptions to plaintiff’s replication to the defense that the policy was void for concealment and breach of warranty, claiming that defendant had waived that ground of defense and was estopped from setting it up. It has been decided by this court [68]*68that waiver, when thus relied on, must be specially set up; that it must amount either to an agreement or an estoppel, and that in the latter case the particular acts, representations, or conduct that have been relied and acted on should be stated with reasonable certainty. (Insurance Co. v. Lacroix, 45 Tex., 158; Banking Co. v. Stone, 49 Tex., 15.) The exceptions were special, and one of the grounds was, that the allegations were vague, uncertain, and indefinite as to time, place, and circumstances, and state only legal conclusions.
The replication—or, rather, as it should now be styled, supplemental petition—alleges that defendant, having knowledge of the facts from which a forfeiture is claimed, “ elected and declined to cancel the policy and notify plaintiff, or said Ahrenbeck Brothers, of the fact”; and the conclusion is drawnthat “defendant, by its own acts, waived the breach of conditions as set up in its answer, if such ever happened, and is now estopped thereby from urging the same in defense of this suit.” By what act or conduct defendant elected and declined to cancel the policy, or made known its election, is not stated; nor is it alleged that plaintiff was thereby, intentionally or otherwise, induced to act or to remain inactive to his prejudice, in the belief that the right to forfeit was abandoned. The replication was, we think, defective in the certainty and definiteness of its averments, and otherwise fell short of stating facts sufficient to amount to a waiver or estoppel. Our views of the requisites of a waiver or estoppel, in a case of this kind, will be further developed in considering the charge of the court.
- The court charged the jury, that “if Mohl, as agent of the company, informed Lauve, its secretary, four or five weeks before the loss occurred, that plaintiff was running cotton gins in the insured preriiises, that would be notice to the company; and the latter, to avail itself of a forfeiture on account thereof, (if under the proof the use of gins worked a forfeiture,) should have apprised the plaintiff within a reasonable time of its intention to claim a forfeiture.”
[69]*69■ The evidence disclosed that Mohl was a local agent at Houston, not at Hempstead; that on a visit to defendant’s factory at Hempstead, in June, 1872, he saw that gins were run in the factory; that in the same summer Lauve, the secretary, being in Houston, Mohl complained that he was not allowed to take risks on gins and gin-houses, and when told that the company declined all such risks, replied: “You have a risk on Ahronbeck’s cotton-seed-oil factory, and they are running gins.” The secretary replied disclaiming any knowledge of any such risk, and said that if he found a policy providing for such risks, he would cancel it. The secretary testified that the conversation occurred on the street, that it passed out of his mind, and that he did not think of it again. He says: “ If spoken to by the insured, or by any one acting for him, in relation to any fact affecting the validity of his policy, I should feel bound to act in some way on such communication; but I should not if spoken to by one having no interest in the policy.”
Under these circumstances we do not think the court justified in charging the jury, as matter of law, that the company, through the information given to its secretary, had notice. The knowledge of the secretary may be equivalent to knowledge of the company; but the question is, Did the secretary owe to the holder of the policy any such duty as required him to bear in mind information thus received, and make it a rule of law that he should be held not to forget it ? It is far from clear that the same rule should apply as in case of one claiming protection as an innocent purchaser without notice.
But, aside from this, is an insurance company, acquiring knowledge of some concealment or breach of warranty constituting a valid ground of forfeiture, in all cases bound in good faith to notify the policy-holder of the forfeiture? If the circumstances be such as to show that the policy-holder had been guilty of no fraud or intentional wrong, we are not prepared to say that the company should not in honesty notify him of the forfeiture or. cancellation, especially if, under [70]*70the terms of the policy, the party would be entitled on the cancellation to a return of the premium, or a part thereof. Even a breach of warranty might occur without any intentional wrong. The cases, however, which are cited by counsel for appellee do not go to the extent of estopping an insurance company from defending on the ground of concealment or breach of warranty because of its silence, where the case is one of fraud and the company would be under no obligation to return any part of the premium.
The case most relied on by appellee is one in which, after the issuance of the policy, the holder -had made a change in his business increasing the risk, which increase of risk without, the assent of the company made the policy void, and if made with notice to the company entitled it to cancel the policy by paying to the assured the unexpired premium pro rata. (Viele v. Germania Insurance Co., 26 Iowa, 9.) In that ease the authorized agent of the company had notice from the parties, and on examining the premises assented to the change on certain conditions. The waiver was express, and, though not indorsed on the policy, was complete and binding.
Clearly, the case, as an authority, does not go far enough to embrace the case before us and support the charge given by the court. The judge who delivered the opinion says in reference to the facts of that case: “If the agent determined that the risk was increased, his duty to his principal and good faith toward the assured, and every principle of honesty, required him to cancel the policy and advise the assured of the fact. It was bad faith of the darkest hue for the agent, upon determining that the risk was increased, so to act and speak as to induce the owner to believe that the policy continued to cover the property. The companies thereby retained the money paid on premiums which they had not earned, and which their contract required should be repaid to the assured upon canceling the policy, and induced their confiding customer to trust for indemnity,” &c. This strong language must be taken with [71]*71reference to the case before the court. It would certainly not be applicable where the defense was, that the insured had been guilty of fraud, which was discovered without his agency, and when, though the policy were forfeited, he would be entitled to no return of premium. An equitable estoppel could not be made available to protect a party guilty of fraud from the consequences of that fraud. We are not called on, in the present attitude of the case, to lay down rules on the subject of waiver which may meet every possible phase of the case on another trial. The subject is one of too much doubt and difficulty to require of us such a course, and we content ourselves with the views already expressed.
The court also charged the jury: “ If you believe from the evidence that cotton gins are embraced fairly in the term ‘ cotton-seed-oil factory,’ or if you believe from the evidence that when the risk was taken cotton gins were used openly and publicly in the oil factory, and that it was then usual in Texas to run them in connection with such factories, then find for the plaintiff.”
It is the opinion of the court that there was no evidence of any usage in Texas to run cotton gins in cotton-seed factories having been so general and so well and long established as to charge the insurance company with notice thereof, and that, under the evidence, this charge should not have been given.
The judgment is reversed and the cause remanded.
Reversed and remanded.
[Opinion delivered March 18, 1880.]