Phœnix Insurance v. Randle

Calhoon, J., delivered the opinion of the court. The decision of the Texas supreme court and the Mississippi supreme court are in entire harmony on the questions presented for appellant, and in both states they are against it. The agent of the insurance company who solicited the risk did not rely on Mr. Randle’s statement for anything. He went in person and examined the building — knew that the doctor’s shop was upstairs, and knew that Randle kept no iron safe, and did not intend to get one until the following fall; and the company, therefore, is bound as upon both waiver and estoppel. “It will not be presumed that the party making the contract intended to perpetrate a fraud, by putting in a condition which he knew would prevent it from taking effect.” Ætna Ins. Co. v. Holcomb, 89 Tex. 410 (34 S. W. 915). The agent knew that, “ as warranties of existing facts, they were false; ” and ‘£ to deliver a policy with full knowledge of facts upon which its validity may be disputed, and then to insist upon these facts as grounds of avoidance, is to attempt a fraud,” and “the courts will not hear the insurance company to say that it knowingly made and delivered to the assured what it knew at the time to be an invalid policy, and that therefore it is not liable for the loss sustained.” Wagner v. Ins. Co., 92 Tex. 554, 555 (50 S. W. 569); Ins. Co. v. Ende, 65 Tex. 123; Goddard v. Ins. Co., 67 Tex. 69 (1 S. W., 906; 60 Am. Rep. 1); Dowling v. Ins. Co., 92 Wis., 63 (65 N. W., 738; 31 L. R. A., 112); Goss v. Ins. Co., 92 Wis. 233 (65 N. W., 1036); Corson v. Ins. Co., 113 Iowa, 641 (85 N. W. 806). Affirmed.