East Texas Fire Ins.v. Coffee

Citations

• 61 Tex. 287
• 1884 Tex. LEXIS 94

Syllabus

<p>1. Parties. — Before judgment is rendered against a debtor, he is entitled to have before the court as plaintiffs all parties who have an interest in the debt, that he may be freed from further liability thereon.</p> <p>2. Policy of insurance — Parties — Assignment.— A policy of insurance is such an instrument of writing as, under articles 286 and 267 of the Revised Statutes, may be assigned, and on which the assignee may maintain an action in his own name.</p> <p>3. Same — Assignment.—Such assignment, after a loss has been sustained, passes the legal title and invests the assignee with the exclusive right to sue upon it. In his hands, however, it is subject to every discount and defense which could have been set up against it in the hands of the previous owner before notice of the assignment was given to the defendant. The fact that the assignment was made as a collateral security for a debt will not vary the rule. Following Perry v. Insurance Co., 25 Ala., 360; Archer v. Insurance Co., 43 Mo., 442; Carpenter v. Miles, 17 B. Mon., 601, and other cases cited.</p> <p>4. Same. — If the assignor of a policy has an equitable interest in the claim, he may be joined as a co-plaintiff, but cannot prosecute alone.</p> <p>5. Waiver.— A distinct denial of liability, and a refusal to pay on the ground that there is no contract, or that there is no liability on the policy of insurance, is a waiver of the condition requiring proof of loss; it is equivalent to a declaration that, even if proof is furnished, no payment will be made.</p> <p>6. Same.— The acts relied on, to constitute a waiver on the part of an insurance company of proof of loss, should be the acts of some one who had authority to bind the company, and should be such as to induce the insured to believe that his proof of loss is not desired, and would be unavailing. Following Beatty v. Insurance Co., 66 Penn. St., 17, and other cases cited.</p> <p>7. Declarations — Negligence.— An insured party cannot rely and act