73 S.W. 847
CONTINENTAL FIRE ASS'N 
v. 
WINGFIELD.
Court of Civil Appeals of Texas.
April 8, 1903.
        Error from District Court, Freestone County; L. B. Cobb, Judge.
        Action by A. N. Wingfield against the Continental Fire Association. Judgment for plaintiff, and 
defendant brings error. Affirmed.
        W. B. Moses, for plaintiff in error. Geo. A. Bell and Gibson & Bryant, for defendant in error.
        FISHER, C. J.
        This suit was filed in the district court of Freestone county, Tex., on the 13th day of June, 1901, by 
A. N. Wingfield against the Continental Fire Association, a corporation of Ft. Worth, Tex., to recover on fire 
insurance policy No. 52,140, issued by said fire association to said Wingfield on the 13th day of October, 
1900, insuring for one year from said date, against loss by fire, in the sum of $1,500, two buildings 
situated in the town of Wortham, Tex., one of which was a two-story frame building, used as a livery 
stable and barn, and the other a one-story frame building, used as a feed store. Said buildings were 
destroyed by fire on the 21st day of January, 1901, and were a total loss. Defendant answered by general 
denial and by special answers setting up the avoidance of the policy by reason of the breach of several 
clauses of the same as follows: (1) Because, in his application for the policy, plaintiff disclosed only one 
policy of concurrent insurance on the property insured —that for $1,000 in the Home Mutual Company
Page 848
of Austin—when in fact he had also a policy for $1,000 in the State Fire Company of Waco, which, with 
defendant's policy for $1,500, made the insurance on said property $3,500, when it was worth, by 
plaintiff's valuation, only $3,000. (2) Because the insured was not the sole and unconditional owner of the 
property, and because the interest of the insured was not correctly stated in the application, it showing 
the title to be in the wife of plaintiff, when in fact it was in said wife and her minor children by a former 
marriage. (3) That plaintiff had no insurable interest in the property, and, to permit him to recover, he 
must be the owner of, or have some insurable interest in, the property. (4) That the policy contract 
provided that no change of the contract or waiver of the terms thereof should be claimed by the insured, 
unless in writing, and attached to or indorsed on the policy. Defendant tendered to plaintiff, and paid into 
court, the amount of the premium paid and interest. Plaintiff, by supplemental petition, denied generally, 
and pleaded waiver of the clauses and warranties set up by defendant, because of the knowledge by the 
agent of the defendant of the condition of the title to the property, and the existence of the policy in the 
Waco Company, and that defendant was estopped from benefit of the defenses set up, and also that the 
property insured was plaintiff's homestead at the time the policy was written. Defendant, by supplemental 
answer, excepted to the pleas of waiver, because said waivers were not shown to be in writing and 
attached to or indorsed on the policy, and pleaded that C. J. Wooldridge, defendant's agent, had 
knowledge of said facts relied on by plaintiff for waiver and estoppel, and that by reason of his relation to 
plaintiff (he being plaintiff's father-in-law), and the circumstances under which said agent wrote the policy 
sued on, he was in fact the agent of plaintiff, and his knowledge would not be binding on defendant, and 
that plaintiff and said agent colluded together to procure more insurance on said property than same was 
worth, and same was a fraud on defendant, and rendered the acts of said agent the acts of plaintiff. The 
case was tried before a jury on March 10, 1902, and a verdict rendered for the plaintiff for the sum of 
$1,587.50.
        We find that the foregoing facts, as indicated and stated in the pleadings of both plaintiff and 
defendant, are true, with the exception of what is stated by defendant in its supplemental answer, in 
charging, in effect, that the agent of the company was the agent of the plaintiff, and that there was any 
fraud or collusion between them at the time that the policy was issued. As to these questions, the 
evidence indicates that the averments of the supplemental answer are not true.
        Our findings of fact, together with the doctrine announced in Insurance Company v. Wagner (Tex. 
Civ. App.) 57 S. W. 876, dispose of plaintiff in error's first, second, third, and fourth assignments of error.
        The fifth assignment of error is as follows: "The court erred in not setting aside the verdict and 
judgment, because the evidence shows that the property destroyed by fire was the property of other 
persons than plaintiff, and that he had no insurable interest therein." It appears from the evidence that 
the property insured and destroyed was the property of the wife of plaintiff and her minor children by a 
former husband, and that at the time of the insurance and the time of the destruction it was the 
homestead of the plaintiff and his wife. He was in the actual use and possession of the property, enjoying 
it as a home, and this right of possession, use, and enjoyment would continue for such a length of time as 
he and his wife would desire to use the property for that purpose. It might be for the life of either or both. 
The right of use and possession was a valuable one, which attached to the house and improvements 
located upon the premises, and gave the husband such an interest as he could protect by insurance.
        We find no error in the record, and the judgment is affirmed. Affirmed.