Denton v. Ware

Appellant has filed a motion for rehearing and the District Attorney of Dallas County has filed a brief as amicus curiae in both of which it is urged that we erred in holding that the contract for the loan to appellant was not a contract of insurance. No complaint is made by appellant that the contract was usurious because it required him to pay the full 10% interest for a year upon a note that was payable in monthly installments. The contention is that appellee could not make a valid contract to waive collection of the debt in the event of the death of appellee, the maker, before the amount evidenced by the note had been repaid because it was, in effect, a contract of insurance and he was not authorized under the law to issue insurance policies. It is urged, therefore, that the $48 paid by appellant for the waiver of repayment of the loan in the event of death of the appellant before it was paid must be considered as interest and the contract was therefore usurious.

We adhere to our original holding that the contract was legally enforcible and that it was not a contract of insurance. In so far as this case is concerned, however, the question of whether it was one of insurance or merely a contract for the repayment of the loan is immaterial. Even if it should be considered as a contract of insurance, there is nothing in our statutes which declares that insurance written without legal authority to engage in the insurance business is void, and there is no law which prohibits any one from procuring or accepting insurance. It is true that, as a prerequisite to the right to engage in the insurance business or the right of foreign insurance companies to do business in this state, the statutes requiring charters and permits must be complied with, but those statutes are for the protection of the citizens of the state who may deal with such companies. It is also true that such companies and their agents are subject to penalties if the statutes are violated and it is generally held that they cannot enforce collection of premiums by suit; but when they have collected such premiums and delivered policies of insurance, those insured under them are entitled to recover on the policies in the event they incur the losses against which they are insured. Home Forum Ben. Order v. Jones,20 Tex. Civ. App. 68,48 S.W. 219; Hartford Fire Ins. Co. v. Galveston, H. S. A. Ry. Co., Tex.Com.App., 239 S.W. 919.

This is not a suit by the appellee to recover the amount which appellant agreed to pay him as a premium for the alleged insurance. If it be called a premium for insurance, it had already been paid and, if appellant had died before the debt was paid, appellee could not have collected the balance remaining unpaid. The contract provided that, in such event, he would waive collection of the debt and, as consideration for waiving its collection, he had been paid by appellant the sum of $48. It is obvious, therefore, that he could not have been successful upon an asserted cause of action upon the contract if the contingency provided therein had happened.

We consider the contract merely as containing a waiver of collection of the debt in the event of the happening of the named contingencies. A waiver is the voluntary *Page 872 and intentional relinquishment of a known right. It is either supported by a consideration or the act relied upon as a waiver is such as to estop the party from insisting on the right claimed to have been relinquished. Weeks v. First State Bank, Tex.Civ.App., 207 S.W. 937; Victor Products Corp. v. Yates-American Mach. Co., 4 Cir., 54 F.2d 1062; Huntsville Elks Club v. Garrity-Hahn Bldg. Co., 176 Ala. 128, 57 So. 750; Schillinger Bros. Co. v. Bosch-Ryan Grain Co., Iowa,116 N.W. 132.

The element of estoppel is not prevalent here but a valid consideration was paid for the waiver and it is equally as effectual as it would be if based upon an absolute condition of estoppel. The motion will be overruled.