Opinion
February 25, 1914. Rehearing Denied March 18, 1914.
Appeal from Hidalgo County Court; James H. Edwards, Judge.
Action by T. W. Mitchell against the Niagara Fire Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.
Crane Crane, of Dallas, for appellant. Alexander Wheless, of Mercedes, and Rich Searle, of Brownsville, for appellee.
Appellee sued appellant to recover on a fire insurance policy for $1,000, of which sum $500 was on a one-story frame building, and the other $500 on a store, office furniture, and fixtures, and recovered judgment for the amount sued for. The property was consumed by fire on April 7, 1913. On March 15, 1913, the agent of appellant told appellee that his principal had ordered him to cancel the policy, and tendered him a check for the unearned premium. Appellee refused the check, and told the agent he would not accept a check for the unearned premium. On March 21st appellee received a letter from Trezevant Cochran, of Dallas, general agents of appellant, giving notice of the cancellation of the policy, and inclosing an express money order for the unearned premium. That express order was retained by appellee until after the fire, when it was returned by appellee's attorney to the makers thereof. The letter was not answered.
The policy provided that it "shall be canceled at any time at the request of the insured, or by the company by giving five days' notice of such cancellation." In another sentence, immediately following the foregoing sentence, provision is made for the return of the unearned premium "on surrender of this policy or last renewal." It is the contention of appellant that under the terms of the policy the notice cancels the policy, although not accompanied with a legal tender of the unearned portion. The contrary has recently been held by this court. Polemanakos v. Insurance Co., 160 S.W. 1134. In that case it was held that, "unless waived, the repayment of the proper proportion of the premium is essential to a valid cancellation and notice without such repayment, or a tender of the amount is ineffectual." A long list of authorities was cited. It is stated in that opinion that there were three federal court decisions, a New Jersey case, an Ohio case, and an Illinois case, to which may be added an Iowa case, cited by appellant, that stated a contrary rule; but the overwhelming weight of authority sustains the decision of this court. The Texas cases are in accord with it. Phoenix Assurance Co. v. Manufacturing Co., 92 Tex. 297, 49 S.W. 222; Fire Ins. Co. v. Cameron, 18 Tex. Civ. App. 237, 45 S.W. 158.
Another contention of appellant is that the retention by appellee of the express order, without notifying appellant that he would not accept anything but money in payment of the unearned premium, estopped him from claiming that there was no legal tender of the unearned premium. We do not think the proposition sound. When a check was offered to appellee by the agent at the time the first notice was given, he told the agent that he would not accept any check in payment of the unearned premium, not because the check was not good, but because he wanted the money. No tender of money was made. The facts of this case easily distinguish it from the case of Lampasas Hotel Co. v. Insurance Co., 17 Tex. Civ. App. 615, 43 S.W. 1081, decided by this court. In that case there was no objection to the check, and the insured treated the cancellation as an accomplished fact, and it was held that a legal tender had been waived. The insured was in the insurance business, and fully acquainted with the terms of the policy in regard to cancellations. There is nothing in this case evidencing the waiver of a legal tender, unless it was the retention of the express order until after the fire, and we do not think that was sufficient to show a waiver, when appellee had distinctly informed appellant that he would not accept any check for the unearned premium. Appelle did not consider that his policy was canceled. There must be a meeting of the minds of insurer and insured as to the fact of cancellation of the policy in order to create a waiver of actual tender of the unearned premium. Appellee at no time admitted by word or act that the policy was canceled. There was no actual return or tender of the proportionate part of the premium, and there was no waiver of such return or tender.
The judgment is affirmed.